UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


THE  JUDICIARY  AND  THE  PEOPLE 


STORRS    LECTURES 
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THE  JUDICIARY 
AND  THE   PEOPLE 


By 

Frederick  N.  Judson 


New  Haven:  Yale  Univeiisity  Press 

London:    Humphrey  Milfokd 

Oxford  University  Press 

MCMXni 


COPYRIGHT,  1913, 
BY  YALE  UNIVERSITY  PRESS 


First   printed   June,    1913.      1000   copies. 


03 1 


The  addresses  contained  in  this  book  were  dehvered  in 
the  WilHam  L.  Storrs  Lecture  Series,  1913,  before 
the  Law  School  of  Yale  University,  New  Haven, 
Connecticut. 


1 


^^ 


16047fl 


CONTENTS 


PAGE 

The  Grave  Importance  of  Subject  .  .       3 

Ancient  and  Medieval  Conception  of  Judi- 
cial Office       .....       5 

The  Judiciary  in  English  History  .  .      10 

Judicial  Power  of  Parliament  .  .11 

Montesquieu  on  Separation  of  Powers     .     14 
Timeliness  of  Montesquieu's  Declaration     16 
The  Anglo-Saxon  and   Continental   Sys- 
tems of  Law  Contrasted  .  .  .18 
President  Lowell  on  Same     .          .          .20 
Judge  Dillon  and  Governor  Baldw'in  on 

Same     .  .  .  .  .  .22 

Separation  of  Powers  in  American  Con- 
stitution .  .  .  .  .24 

Federal   Courts   on   Imposition   of   Non- 
Judicial  Duties        .  .  .  .27 

1 


THE  JUDICIARY 

PAGE 

Judicial  Construction  of  the  Separation  of 

Powers            .          .          .          .          .30 
Not  Enforced  by  United  States  Supreme 
Court  in  Annulment  of  State  Stat- 
utes         33 

Non-Judicial  Duties  in  State  Courts         .     36 
Exercise  of  Judicial  Powers  by  Legisla- 
tive Bodies 37 

The  Appellate  Jurisdiction  of  House  of 

Lords 39 

Modern  Administrative  Commissions       .     41 
The  Interstate  Commerce  Commission     .     42 
Modern  Criticism  of  Montesquieu's  Prin- 
ciple      .  .  .  .  .  .43 

Conceded  Independence  of  Judicial  Power     45 


The  Independence  of  the  Judiciary  and 

THE  Separation  of  the  Powers  of 

Government 

The  Grave  Importance  of  Subject 

The  relation  of  the  judiciary  to  the  people 
in  a  self-governing  country  is  a  question  of 
profound  importance,  not  only  to  lawyers 
interested  primarily  in  the  administration  of 
justice,  but  to  all  patriotic  citizens  who  are 
concerned  with  the  orderly  administration  of 
the  powers  of  government  and  with  the  secure 
maintenance  of  private  rights,  whether  of  per- 
son or  property.  It  goes  without  saying  that 
a  judge  should  be  impartial,  and  independence 
of  the  parties  to  any  controversy  is  an  essential 
element  in  this  impartiality.  This  grows  out 
of  the  essential  nature  of  any  conception  of 
the  judicial  office.  We  all  recognize  that  the 
umpire  in  any  game  or  contest  of  merit  must 
3 


THE  JUDICIARY 

be  impartial ;  that  is,  must  be  independent  of 
the  parties  to  the  controversy  which  he  must 
decide. 

It  is  also  important  that  the  people  of  a  self- 
governing  country  should  have  confidence  in 
their  judiciary;  that  is,  in  the  system  where- 
under  and  the  men  by  whom  justice  is  admin- 
istered. In  this  country  where  the  courts  in 
deciding  private  controversies  may  also  deter- 
mine grave  constitutional  questions,  and  in 
effect  make  law  through  the  decision  of  con- 
crete cases,  it  is  the  more  essential  that  the 
people  should  have  confidence  in  those  in 
whose  hands  this  great  trust  is  imposed.  The 
gravity  of  this  subject  is  emphasized  at  the 
present  time,  when  we  have  evidences  on  every 
hand  of  a  distrust  among  our  people  of  their 
judges,  or  of  our  judicial  system.  This  has 
been  proclaimed  in  the  popular  press,  and  even 
in  the  political  platform  of  one  of  our  great 
national  parties,  and  has  been  voiced  by  the 
only  living  ex-Presidents  of  the  Republic 
4 


AND  THE  PEOPLE 

though  on  different  grounds  and  from  radi- 
cally different  points  of  view.  This  is  a  sub- 
ject of  discussion  in  every  meeting  of  our  bar 
associations.  In  a  recent  meeting  of  the 
Massachusetts  Bar  Association,  a  paper  was 
read  by  one  of  the  most  distinguished  laymen 
of  the  country,  the  President  Emeritus  of  Har- 
vard University,  on  the  Popular  Dissatisfac- 
tion with  the  Administration  of  Justice  in  the 
United  States.^ 

It  is,  therefore,  indeed  a  timely  subject  to 
consider  the  relation  of  the  judiciary  to  the 
people,  and  I  therefore  ask  your  attention  to 
a  historical  review  of  the  development  of  the 
judicial  power  in  the  United  States,  and  there- 
after to  a  consideration  of  the  specific  grounds 
of  complaint  and  the  suggested  remedies. 

Ancient  and  Medieval  Conception  of  Judicial 
Office 

The  modern  conception  of  the  independence 

^  Green  Bag,  February,  1913. 
5 


THE  JUDICIARY 

of  the  judiciary  is  closely  associated  in  all 
modern  governments  with  what  is  known  as 
the  principle  of  the  separation  of  the  powers 
of  government.  This  is  comparatively  a  mod- 
ern conception,  having  been  first  formulated 
by  Montesquieu  in  France  in  his  "Spirit  of  the 
Laws,"  published  in  1748. 

The  ancient  and  medieval  conception  of  the 
judicial  office  shows  little  or  no  trace  of  any 
recognition  of  this  principle  of  a  judgeship 
distinct  from  the  other  powers  of  government. 
Although  the  principle  is  said  to  have  been 
recognized  by  Aristotle,^  we  can  find  no  formal 
recognition  of  this  maxim  of  government 
until  comparatively  modern  times.  In  ancient 
societies,  the  King  was  at  once  a  military  chief- 
tain, a  priest  and  a  judge.  Such  were  the 
Homeric  chieftains.  We  have  an  interesting 
representation  of  the  ancient  conception  of  the 
judicial  office  in  the  representation  on  the 
shield  of  Achilles,   fashioned   by  Vulcan,   as 

2  Aristotle  Politics,  Book  6,  ch.  XIV. 


AND  THE  PEOPLE 

described  by  Homer,^  whereon  a  trial  scene 
was  presented,  and  in  this  the  Elders,  in  the 
presence  of  the  people,  are  rising  up  and  giv- 
ing judgment  in  turn. 

Two  forms  of  authority  are  associated  in 
the  administration  of  justice  in  the  early  his- 
tory of  mankind,  that  is,  the  King  and  the 
Popular  Assembly.  As  the  royal  authority 
disappeared  in  the  highly  developed  civiliza- 
tions of  Greece  and  Rome,  the  popular 
assemblies  gained  power  in  the  administration 
of  justice ;  and  with  the  illustrations  from 
classic  history  of  this  administration  of  justice 
by  the  popular  assemblies,  we  are  familiar. 
This  much  is  clear,  that  apart  from  the 
influence  of  popular  assemblies,  justice  was 
administered  by  the  political  power  of  a  ruler 
associated  at  times  with  the  elders  or  the  local 
chiefs,  as  in  the  representation  of  Homer. 
Thus,  the  Roman  Praetor  was  a  political  officer 
vested  with  important  functions  in  the  govern- 

3  Iliad,  18,  508. 

7 


THE  JUDICIARY 

ment  of  the  state,  while  acting  as  the  supreme 
judicial  officer  in  the  control  of  the  judicial 
machinery  for  the  determination  of  causes. 

The  power  of  the  popular  assembly  in  the 
administration  of  justice  was  more  fully 
developed  among  the  ancient  Germans,  as 
described  by  Tacitus,  and  there  we  find  that 
justice  was  administered  by  the  chiefs  selected 
for  that  purpose  with  the  aid  of  the  popular 
assemblies ;  and  this  is  of  special  interest  to 
us,  as  it  is  from  these  liberty-loving  Germans 
that  our  Anglo-Saxon  self-governing  commu- 
nities are  lineally  descended.  Thus,  Tacitus 
says  of  the  Germans  :^ 

"In  the  same  assembly  chiefs  (principes) 
are  chosen  to  administer  justice  through  the 
districts  and  villages.  Each  chief  in  so  doing 
has  a  hundred  companions  of  the  commons, 
assigned  to  him  as  at  once  his  counsellors  and 
his  authority." 

We  have  an  interesting  illustration  of  the 

4  Germania,  ch.  13. 
Freeman's  Growth  of  English  Constitution,  ch.  1. 

8 


AND  THE  PEOPLE 

primitive  administration  of  justice  in  the  Old 
Testament  narrative  of  the  Mosaic  Law ;  that 
is,  when  Moses,  finding  his  position  as  the 
Chief  Judge  of  all  the  people  to  involve  too 
burdensome  a  duty,  appointed,  we  are  told, 
"able  men,  such  as  feared  God,  men  of  truth, 
hating  covetousness,  and  placing  them  to  be 
rulers  of  thousands,  of  hundreds,  of  fifties  and 
of  tens,"  and  allowed  them  to  judge  the  people 
at  all  seasons,  that  is,  in  small  matters ;  but 
the  hard  cases,  we  are  told,  they  brought  unto 
Moses  and  he  continued  to  judge  them.'^ 

In  view  of  the  tribal  division  of  the  people 
of  Israel,  it  would  seem  that  the  local  intra- 
tribal  controversies  were  determined  by  the 
local  chiefs  or  elders  thus  appointed,  while  the 
larger  questions,  those  relating  to  the  diflfer- 
ences  between  the  tribes,  were  reserved  for 
the  judgment  of  Moses  as  the  Chief  of  the 
people.  Thus,  we  find  a  trace  of  the  necessary 
dependence  of  a  federated  state  upon  a  central 

5  Exodus,  ch.  18. 

9 


THE  JUDICIARY 

and  controlling  authority,  of  which  we  shall 
find  illustrations  in  later  history. 

In  the  subsequent  Hebrew  history  we  find 
that  Israel  was  judged  by  military  chieftains 
and  by  Prophets.  Thus,  Samuel  the  Prophet 
judged  Israel,  and  when  he  was  old  he  made 
his  sons  judges  over  Israel ;"  and  we  are  told 
that  his  sons  walked  not  in  his  ways,  but 
turned  aside  after  lucre,  and  took  bribes  and 
perverted  judgment :  and  that  was  the  occasion 
of  the  establishment  of  a  kingly  power,  and 
thereafter  the  supreme  judicial  authority  was 
exercised  by  the  Kings. 

The  Judiciary  in  English  History 

In  England,  the  country  from  which  we 
derive  our  jurisprudence,  the  King  was  the 
original  source  of  justice,  which  was  admin- 
istered by  the  King  and  the  Council,  or  Curia, 
and  from  this  Curia  was  developed,  in  the 
course  of  time,  not  only  the  English  Parlia- 

«  1  Samuel  7:  15,  and  8:  1-3. 
10 


AND  THE  PEOPLE 

ment,  with  its  two  Houses,  of  Lords  and  the 
Commons,  but  also  the  courts  which  have 
come  down  to  modern  times. 

Modern  historic  investigation  has  shown 
that  in  medieval  England,  legislation  in  its 
proper  sense,  even  after  the  organization  of 
the  two  Houses  of  Parliament,  was  all  un- 
known, and  the  Parliament  has  not  improp- 
erly been  termed  the  High  Court  of  Parlia- 
ment.^ 

Judicial  Power  of  Parliament 

So  far  from  there  being  any  recognition  of 
the  principle  of  the  separation  of  the  powers 
of  government,  there  was  in  effect,  even  in  the 
Parliament,  a  fusion  of  the  legislative  and  the 
judicial  functions.  Parliament  was  called 
together,  not  only  for  the  purpose  of  legisla- 
tion or  taxation,  but  so  that  the  complaints  of 
the  people  of  the  Commonwealth,  or  of  indi- 

"^  High  Court  of  Parliament  and  its  Supremacy,  by 
Mcllwain. 

11 


THE  JUDICIARY 

viduals,  might  be  discussed  and  heard.  It  was 
the  King's  recognized  High  and  Extraordinary 
Court  of  Justice,  in  which  he  would  grant 
redresses  whenever  the  ordinary  tribunals 
were  unable  or  unwilling  to  grant  relief.  The 
King  was  the  fountain  of  justice,  and  the 
Parliament  his  advisers  or  assistants  in  judi- 
cature. The  development  of  the  modern 
theory  of  the  sovereignty  of  parliament  is  the 
result  of  a  historic  development,  which  is 
traceable  through  the  contest  of  the  parlia- 
ment with  the  Stuarts  in  the  seventeenth  cen- 
tury, and  is  characteristic  of  the  unique 
political  history  of  England,  "a  country  of 
old  and  just  renown,  where  freedom  broadens 
slowly  down,  from  precedent  to  precedent." 

This  development  of  the  English  Parlia- 
ment from  a  body  wherein  judicial  and  legis- 
lative powers  were  thus  fused,  was  considered 
by  our  supreme  court,^  and  it  was  ruled 
that  the  claim  of  the  House  of  Representatives 

8  Kilbourne  v.  Thompson,  103  U.  S.  168. 
12 


AND  THE  PEOPLE 

in  Congress  of  the  right  to  punish  a  citizen  for 
contempt  of  its  authority  could  derive  no  sup- 
port from  the  precedents  and  practices  of  the 
two  houses  of  parhament  in  England,  as  this 
power  in  England  went  back  to  the  time  when 
parliament  exercised  the  highest  functions  of 
a  court  and  represented  the  King  in  his  High 
Court  of  Parliament ;  and  the  court  com- 
mented upon  the  fact  that  this  judicial  author- 
ity was  still  exercised  by  the  House  of  Lords 
as  an  appellate  court. 

The  Bills  of  Attainder,  that  is,  acts  of  con- 
demnation, which  are  expressly  prohibited  by 
the  constitution  of  the  United  States  and 
were  frequent  in  England  during  the  Tudors, 
were  illustrative  of  this  early  fusion  of  powers. 

It  must  not  be  overlooked,  however,  that 
during  this  period,  though  there  was  a  fusion 
of  judicial  and  legislative  powers  in  parlia- 
ment, the  substantive  common  law  which  our 
courts  are  now  exercising  and  enforcing  both 
in  England  and  in  the  United  States,  was  being 
13 


THE  JUDICIARY 

gradually  but  surely  developed,  through  legis- 
lative acts  from  time  to  time,  as  well  as  in  the 
decisions  of  the  courts  ;  and  this  is  the  common 
law  which  is  administered  by  the  courts  of 
England  and  its  self-governing  colonies,  as 
well  as  in  the  United  States.  But  this  history 
is  illustrative  of  what  is  now  well  recognized, 
that  the  separation  of  legislative  and  judicial 
functions  in  the  powers  of  government  is  a 
refinement  of  the  principle  of  political  gov- 
ernment and  jurisprudence,  which  can  only 
be  the  result  of  an  advanced  civilization.^ 

Montesquieu  on  Separation  of  Powers 

The  principle  of  the  separation  of  the 
powers  of  government  was  first  distinctly 
formulated,  as  already  stated,  by  Montesquieu 
in  his  "Spirit  of  the  Laws,"  published  in  1748. 
Probably  no  pronouncement  of  the  philosophy 
of  government  has  created  a  more  profound 
and  lasting  impression  upon  thoughtful  men. 

^  May's  Parliamentary  Practices,  9th  Ed.,  p.  754. 
14 


AND  THE  PEOPLE 

It  certainly  was  so  received,  not  only  in  this 
country,  but  on  the  continent  of  Europe, 
though,  as  will  be  seen,  with  a  very  different 
application,  and  it  is  here  quoted : 

"In  every  government  there  are  three  sorts  / 
of  power :  the  legislative ;  the  executive,  in 
respect  to  things  dependent  on  the  law  of 
nations ;  and  the  executive,  in  regard  to  mat- 
ters that  depend  on  the  civil  law.  By  virtue 
of  the  first  the  prince  or  magistrate  enacts 
temporary  or  perpetual  laws,  and  amends  or 
abrogates  those  that  have  been  already  en- 
acted. By  the  second,  he  makes  peace  or  war, 
sends  or  receives  embassies,  establishes  the 
public  security  and  provides  against  invasions. 
By  the  third,  he  punishes  criminals  or  deter- 
mines the  disputes  that  arise  between  indi- 
viduals. The  latter  we  shall  call  the  judiciary 
power,  and  the  other  simply  the  executive 
power  of  the  State When  the  legisla- 
tive and  executive  powers  are  united  in  the 
same  person  or  in  the  same  body  of  magis- 
trates, there  can  be  no  liberty,  because  appre- 
hensions may  arise  lest  the  same  monarch  or 
senate  should  enact  tyrannical  laws,  to  execute 
them  in  a  tyrannical  manner.  Again,  there  is 
no  liberty  if  the  judiciary  power  be  not  sepa-|'' 

15 


THE  JUDICIARY 

rated  from  the  legislative  and  executive.  Were 
it  joined  with  the  legislative,  the  life  and 
liberty  of  the  subject  would  be  exposed  to 
arbitrary  control ;  for  the  judge  would  be  then 
the  legislator.  Were  it  joined  with  the  execu- 
tive power,  the  judge  might  behave  with 
violence  and  oppression.  There  would  be  end 
of  everything  were  the  same  man,  or  the  same 
body,  whether  of  nobles  or  of  the  people,  to 
exercise  those  three  powers — that  of  enacting 
laws,  that  of  executing  the  public  resolutions, 
and  of  trying  the  causes  of  individuals."^^ 

Timeliness  of  Montesquieu's  Declaration 

This  declaration  of  Montesquieu  of  the 
fundamental  principle  of  the  separation  of  the 
powers  of  government  was  published  at  a 
most  opportune  period  in  the  history  of  the 
governments  of  the  world.  The  American 
and  French  revolutions,  which  were  destined  in 
the  generations  immediately  succeeding  to 
make  profound  and  lasting  changes  in  the 
governmental  organizations  of  both  continents, 

^^  Spirit  of  the  Laws,  Book  XI,  ch.  6  (Nugent's 
Translation). 

16 


AND  THE  PEOPLE 

may  be  said  to  have  been  then  impending.  In 
the  American  colonies  and  in  France  these 
fundamental  principles  of  government  were 
eagerly  discussed.  It  was  in  England,  how-  '^. 
ever,  where  the  revolution  of  1688  had 
defeated  the  attempted  absolutism  of  the 
Stuarts,  that  Montesquieu  saw  what  he 
deemed  was  a  practical  illustration  of  his  prin- 
ciple of  the  separation  of  the  powers.  By  the 
Act  of  Settlement  in  1701,  the  independence  of 
the  judiciary  had  been  secured  by  the  provi- 
sion that  judges  should  not  be  removed  save 
on  an  address  from  Parliament  to  the  crown. 
It  had  been  the  practice  of  the  Stuarts,  espe- 
cially in  the  last  years  of  their  dynasty,  to 
dismiss  without  seeking  any  other  pretense, 
judges  who  showed  any  disposition  to  thwart 
the  government  in  political  prosecutions. 
Under  the  Act  of  Settlement,  the  commissions 
of  the  judges  were  quani  diu  se  bene  gesserint; 
that  is,  during  life,  or  good  behavior,  instead 
of  durante  placito,  at  the  discretion  of  the 
17 


THE  JUDICIARY 

crown,  as  they  had  been  theretofore.  Montes- 
quieu had  previously  studied  the  English  sys- 
tem as  set  forth  in  the  laws,  but  he  did  not 
foresee  the  future  development  of  the  suprem- 
acy of  the  House  of  Commons  and  the  subjec- 
tion of  the  royal  authority  through  disuse  of 
the  veto  power,  nor  did  he  realize  what  has 
been  termed  the  law-making  power  of  the 
judiciary,  through  opinions  in  concrete  cases 
under  the  doctrine  of  judicial  precedent,  nor 
did  he  realize  or  foresee  the  tremendous  power 
of  public  opinion  in  modifying  the  written 
law. 

The  Anglo-Saxon  and  Continental  Systems 
of  Law  Contrasted 

Before  proceeding  with  the  consideration  of 
the  adoption  and  construction  of  this  separa- 
tion of  the  powers  in  our  American  constitu- 
tions, attention  must  be  called  to  the  funda- 
mental distinction  in  the  conception  of  law 
between  the  Anglo-Saxon,  that  is,  both  Eng- 
land and  the  United  States  on  the  one  hand, 
18 


AND  THE  PEOPLE 

and  that  in  France  and  the  countries  of  con- 
tinental Europe  on  the  other.  Thus  in  Eng- 
land and  the  United  States,  all  men  are  equal 
before  the  law  and  there  is  one  law  of  the 
land  to  which  every  one  is  subject,  from  the 
humblest  citizen  to  the  highest  officer.  In 
France  and  other  continental  countries,  on  the 
other  hand,  there  is  a  very  different  concep- 
tion of  law,  in  that  public  officials  thereunder 
are  not  interfered  with  by  the  courts,  but  are 
made  subject  to  a  different  system  known  as 
Administrative  Law,  and  applied  by  distinct 
tribunals — in  other  words,  public  law,  as  dis- 
tinct from  private  law ;  and  this  distinction 
had  existed  under  the  old  regime  in  France, 
as  well  as  in  other  countries  of  continental 
Europe  and  was  extended  and  systematized 
after  the  French  revolution.  That  profound 
commentator,  the  late  Professor  Thayer,^^ 
says  that  the  term  "separation  of  powers," 
means  in  the  mouth  of  the  French  statesmen 

^1  Constitutional  Cases,  Vol.  I,  p.  6. 
19 


THE  JUDICIARY 

or  lawyers  something  different  from  what  we 
mean  in  English.  And  so  as  to  the  independ- 
ence of  judges,  he  says  that  Montesquieu  mis- 
understood on  this  point  the  principles  and 
practices  of  the  English  constitution,  and  his 
doctrine  was  in  short  either  misunderstood  or 
misapplied  by  the  French  statesmen  of  the 
French  revolution,  whose  judiciar}^  was  biased 
at  once  by  the  knowledge  and  the  influences 
which  had  resulted  from  the  interference  of 
the  French  parliament  in  matters  of  state,  and 
by  the  characteristic  of  the  traditional  desire 
to  increase  the  force  of  a  central  government. 
Thus  the  doctrine  of  the  separation  of 
powers  had  a  profound  influence  in  France 
and  continental  countries  and  is  directly  con- 
nected with  the  legal  position  of  public  offi- 
cials, rendering  it  essentially  different  from 
that  in  English  countries. 

President  Lowell  on  Same 

To  quote  from  another  eminent  authority, 
20 


AND  THE  PEOPLE 

President   Lowell,   in  his   "Governments   and 
Parties  in  Continental  Europe"  :^- 

"The  French  statesmen,  therefore,  took 
Montesquieu's  doctrine  in  the  sense  that  the 
administrator  ought  to  be  free  to  act  for  the 
public  weal  without  let  or  hindrance  from  the 

courts     of     law The     American     and 

French  applications  of  the  doctrine  of  the 
separation  of  powers  are  both  perfectly  logical, 
but  are  based  on  different  conceptions  of  the 
nature  of  law.  The  Anglo-Saxon  draws  no 
distinction  between  public  and  private  law. 
To  him  all  legal  rights  and  duties  of  every 
kind  form  part  of  one  universal  system  of 
positive  law,  and  so  far  as  the  functions  of 
public  officials  are  not  regulated  by  that  law, 
they  are  purely  matters  of  discretion.  It 
follows  that  every  legal  question,  whether  it 
involves  the  power  of  a  public  officer  or  the 
construction  of  a  private  contract,  comes 
before  the  ordinary  courts.  In  France,  on  the 
other  hand,  private  law,  or  the  regulation  of 
the  rights  and  duties  of  individuals  among 
themselves,  is  treated  as  only  one  branch  of 
jurisprudence ;  while  public  law,  which  deals 
with  the  principles  of  government  and  the  rela- 
ys Vol.  I,  pp.  54,  55  and  56. 

See  also  Baldwin's  American  Judiciary,  ch.  3. 

21 


THE  JUDICIARY 

tions  of  individuals  to  the  State,  is  regarded 
as  something  of  an  entirely  different  kind." 

This  principle  of  the  separation  of  the 
powers  of  government  was  emphatically  stated 
in  the  constitution  of  the  French  revolution. 
Thus  in  the  French  Constitution  of  September 
3,  1791,  it  was  said  "that  system  under  which 
the  guaranty  of  rights  is  not  secured  or  the 
separation  of  powers  is  not  fixed,  is  no  consti- 
tution." And  Articles  I  and  III  of  this  consti- 
tution also  provide : 

"The  judicial  power  can  not  in  any  case  be 
exercised  by  the  legislative  power  or  by  the 
king.  The  tribunals  can  not  interfere  with  the 
exercise  of  the  legislative  power,  nor  suspend 
the  execution  of  the  laws,  nor  encroach  upon 
its  functions,  nor  cite  any  administrator  to 
appear  before  them  on  account  of  their 
functions." 

Judge    Dillon    and    Governor    Baldvi^in    on 
Same 

Judge  Dillon,  in  his  addresses  in  this  course 
many  years  since,  commented  upon  this  rule 
23 


AND  THE  PEOPLE 

of  equal  law — that  is,  the  law  which  is  appli- 
cable to  public  officials  as  well  as  to  private 
citizens — as  one  of  the  chief  excellences  of  our 
English  system  of  law.^"^  This  distinction  is 
also  pointed  out  by  Governor  Baldwin,^"*  who 
says  that  the  system  of  administrative  law 
prevailing  on  the  Continent  of  Europe  by 
which  cases  involving  acts  of  public  officials 
are  withheld  from  the  ordinary  tribunals  is 
totally  unknown  in  this  country,  where  any 
officer  of  the  government,  and  even  the  Presi- 
dent, after  the  expiration  of  his  term,  may  be 
sued  in  a  court  having  jurisdiction  of  the 
parties.  The  continental  system  of  adminis- 
trative law  was  really  involved  in  the  dispute 
between  the  Stuarts  and  parliament.  That  is, 
the  question  was  whether  a  distinct  adminis- 
trative law  administered  through  the  King's 
tribunal,  such  as  the  Star  Chamber,  should  or 

13  Laws  and  Jurisprudence  of  England  and  Amer- 
ica, p.   115. 

14  American  Judiciary,  ch.  3. 

23 


THE  JUDICIARY 

should  not  be  permanently  established  in 
England.  The  advocates  of  the  prerogative 
wished  to  give  the  government  the  rights  con- 
ferred upon  a  foreign  executive  under  the 
principles  of  an  administrative  law,  and  these 
efforts  finally  culminated  in  the  revolution  of 
England  against  the  claim  of  dispensing  power 
by  James  II  and  in  the  Bill  of  Rights  of 
1688.1° 

Separation  of  Powers  in  American  Consti- 
tution 

Turning  now  to  the  formation  of  the  Fed- 
eral Constitution,  we  find  that  no  opinion  had 
more  weight  with  its  f  ramers  than  this  declara- 
tion of  Montesquieu.^*^  In  the  debates  of  the 
Constitutional  Convention  frequent  reference 
was  made  to  the  separation  of  the  powers,  and 

1^  Dicey's  Law  of  the  Constitution,  7th  Ed.,  pp. 
365,  366. 

Mcllwain's  High  Court  of  ParHament  and  its 
Supremacy,  p.  319. 

1*5  Sir  Henry  Maine  on  Popular  Government,  p. 
218. 

24 


AND  THE  PEOPLE 

although  the  constitution  itself  does  not  con- 
tain a  distinct  enunciation  of  the  maxim,  it 
does  recognize  the  fact  of  separation  by  impli- 
cation in  the  distinct  statement  of  the  execu- 
tive, legislative  and  judicial  powers. 

In  the  debates  in  the  different  States  pre- 
ceding the  adoption  of  the  constitution,  it 
was  criticised  on  the  ground  that  it  had  vio- 
lated this  fundamental  principle  of  the  separa- 
tion of  the  powers,  as  in  giving  the  executive 
a  part  through  the  veto  power  in  legislation. 
But  it  was  answered  in  the  Federalist  that  this 
involved  no  substantial  violation  of  the  funda- 
mental principle  of  the  separation  of  the 
powers  of  government.  The  distinction  was 
further  declared,  which  was  subsequently 
affirmed  by  Judge  Story ,^'^  that  the  principle 
of  the  separation  of  powers  does  not  mean 
that  the  three  departments  must  be  kept  wholly 
and  entirely  distinct  and  have  no  link  of  con- 
nection or  dependence  the  one  upon  the  other 

^"^  See  Story  on  the  Constitution,  Sth  Ed.,  p.  393. 
25 


THE  JUDICIARY 

in  the  slightest  degree.  The  true  meaning  is 
that  the  whole  power  of  one  of  these  depart- 
ments should  not  be  exercised  by  the  same 
hand  which  possesses  the  whole  powers  of 
either  of  the  other  departments ;  and  that  such 
exercise  of  the  whole  would  subvert  the  prin- 
ciples of  a  free  constitution. 

The  principle  of  the  separation  of  powers 
was  strongly  impressed  upon  the  people  of 
the  United  States,  even  before  the  adoption 
of  the  constitution.  Thus,  it  is  said  in  the 
constitution  of  Massachusetts,  adopted  dur- 
ing the  Revolutionary  War  in  1780,^^  that  the 
legislative  department  "shall  never  exercise 
the  judicial  or  executive  powers,  or  either  of 
them ;  the  executive  shall  never  exercise  the 
legislative  or  judicial  powers,  or  either  of 
them;  the  judicial  shall  never  exercise  the 
legislative  or  executive  powers,  or  either  of 
them ;  to  the  end  it  may  be  a  government  of 
laws  and  not  of  men." 

18  Part  I,  Article  30. 

26 


AND  THE  PEOPLE 

Soon  after  the  adoption  of  the  Federal  Con- 
stitution, in  1792,  the  Constitution  of  Kentucky 
said  -.^^ 

"Each  of  them  to  be  confided  to  a  separate 
body  of  magistry ;  to-wit,  those  which  are 
legislative  to  one,  those  which  are  executive  to 
another,  and  those  which  are  judicial  to 
another.  No  person,  or  collection  of  persons, 
belonging  to  one  of  these  departments,  shall 
exercise  any  power  properly  belonging  to 
either  of  the  others,  except  in  the  instances 
hereinafter  expressly  permitted." 

This  language  is  almost  literally  repeated  in 
the  Missouri  Constitution  of  1875.  This  prin- 
ciple of  the  separation  of  the  powers  is  either 
expressly  declared  as  above,  or  else  is  implied 
in  the  distribution  of  all  such  powers  in  sepa- 
rate articles,  as  in  the  United  States  Consti- 
tution— in  the  other  states  of  the  Union. 

Federal    Courts    on    Imposition    of    Non- 
Judicial  Duties 

The  application  of  the  separation  of  powers 

19  Article  I. 

27 


THE  JUDICIARY 

under  the  constitution  of  the  United  States 
was  first  presented  by  an  act  passed  by  con- 
gress March  83,  1791,  requiring  the  circuit 
courts  to  revise  the  claims  of  widows  and 
orphans  of  soldiers  and  of  those  entitled  to 
invalid  pensions  subject  to  a  further  revision 
thereafter  by  the  secretary  of  war,  and  by 
congress.  The  judges  of  different  circuit 
courts  protested  that  neither  the  legislative 
nor  the  executive  branches  of  the  government 
could  constitutionally  assign  to  the  judiciary 
any  duties  but  such  as  were  properly  judicial, 
and  were  to  be  performed  in  a  judicial  manner, 
and  that  by  the  constitution  the  government 
is  divided  into  three  distinct  and  independent 
branches,  and  that  it  is  the  duty  of  each  to 
abstain  from  and  to  oppose  encroachments  on 
either.  Some  of  the  judges  declined  to  per- 
form the  duty  imposed  by  the  act.  Before  the 
matter  could  be  definitely  determined  by  the 
supreme  court  of  the  United  States,  congress 
relieved  the  embarrassment  by  repealing  the 
28 


AND  THE  PEOPLE 

act  in  question  and  providing  in  another  way 
for  the  rehef  of  the  pensioners.'"  This  prin- 
ciple of  the  separation  of  the  powers  was 
thereafter  distinctly  declared  by  the  supreme 
court.    Thus  it  was  said  :-^ 

It  is  believed  to  be  one  of  the  chief  merits 
of  the  "American  system  of  written  constitu- 
tional law  that  all  the  powers  entrusted  to 
government,  whether  State  or  National,  are 
divided  into  three  great  departments,  the 
Executive,  Legislative,  and  Judicial.  That  the 
functions  appropriated  to  each  body  of  public 
service,  and  that  the  perfection  of  the  system 
required  that  the  lines  which  separate  these 
departments  shall  be  broadly  and  clearly  de- 
fined. It  is  also  essential  to  the  successful 
working  of  this  system  that  the  persons  en- 
trusted with  powers  in  any  one  of  these 
branches  should  not  be  permitted  to  encroach 
upon  the  powers  confined  to  the  others,  but 
that  each  shall  by  the  law  of  its  creation  be 
limited  to  the  exercise  of  the  powers  appro- 
priated to  its  own  department  and  to  no  other." 

20  Hayburn's  Case,  2  Dallas  410. 

21  Kilbourne  v.  Thompson,  103  U.  S.  168. 

29 


THE  JUDICIARY 

The  Judicial  Construction  of  the  Separation 
of  Powers 

This  judicial  recognition  of  the  principle  of 
the  separation  of  the  powers  of  government 
does  not  mean,  however,  that  the  constitution 
of  the  United  States  makes  this  principle  of 
separation  of  powers  obligatory  upon  the 
states,  or  that  it  could  be  enforced  by  the 
federal  government  upon  the  states  by  the 
annulment  of  state  legislation  either  prior  to 
or  since  the  adoption  of  the  fourteenth  amend- 
ment. The  principle  of  the  separation  of 
powers  is  political  rather  than  judicial ;  and 
though  one  of  the  most  important,  if  not  the 
most  important,  of  our  governmental  princi- 
ples, it  is  not  guaranteed  by  the  federal  gov- 
ernment to  citizens  of  a  state  in  a  state,  and 
it  must  rest  for  enforcement  upon  that  public 
opinion  which  is  the  foundation  of  self-gov- 
ernment.--   However  strongly  the  principle  of 

22  Stimson  on  Law  of  the  State  and  Federal  Con- 
stitutions, p.  50. 

30 


AND  THE  PEOPLE 

separation  may  be  stated  in  constitutions,  in 
fact  there  is  not,  and  cannot  be,  a  complete 
separation  or  independence.  This  was  set 
forth  in  the  Federahst,  in  the  discussion  upon 
the  adoption  of  the  constitution,  to  which 
reference  has  been  made.  It  is  illustrated 
by  the  broad  construction  given  by  state 
courts  to  the  provisions  in  state  constitutions 
declaring  the  separation  of  powers.  While  the 
assumption  by  the  legislature  or  executive  of 
distinctly  judicial  powers  has  been  condemned 
by  the  courts,  it  is  also  true  that  it  is  not  always 
easy  to  distinguish  between  powers  and  duties 
which  might  and  those  which  might  not  be 
assigned  by  the  legislature  to  the  other  depart- 
ments of  the  government.  It  is  often  difficult 
to  point  Qut  the  precise  boundary  separating 
legislative  from  judicial  duties,  and  still  more 
difficult  to  discriminate  sometimes  between 
what  is  properly  legislative  and  what  is  prop- 
erly executive. 

The  difficulty  of  enforcing  the  principle  of 
31 


THE  JUDICIARY 

the  separation  of  powers  is  greater  in  the 
state  than  in  the  federal  government,  on 
account  of  the  fact  that  in  the  states  the 
legislative  power  is  not  definitely  limited  as  it 
is  in  congress.  It  is  the  principle  of  our 
American  constitutional  law  that  a  state  legis- 
lature has  full  power  over  all  subjects  of  legis- 
lation, except  where  expressly  limited  by  the 
constitution  of  the  State  or  of  the  United 
States.  This  broad  extent  of  legislative  power 
may  include  matters  pertaining  to  the  other 
departments  of  government,  as  in  the  supply  of 
funds  for  their  support,  in  the  determination 
of  rules  of  practice  and  procedure  in  the 
courts,  and  the  like.  The  only  definite  line  of 
limitation  which  can  be  laid  down  is  that  the 
legislature  cannot  impair  the  essential  powers 
of  either  the  executive  or  the  judicial  depart- 
ment nor  assume  the  performance  of  what 
are  essentially  executive  or  judicial  duties. 

It  would  not  be  practicable  within  the  limits 
of  this  lecture  to  consider  in  detail  the  different 
32 


AND  THE  PEOPLE 

cases  in  which  this  principle  has  been  involved. 
It  is  sufficient  to  say  that  the  courts  have  been 
disposed  to  give  a  hberal  construction  to  the 
legislative  power  where  there  was  no  essential 
impairment  of  executive  authority  or  judicial 
independence,-^  and  especially  when  it  is  not 
easily  determined  where  the  power  may  be 
properly  lodged.^'* 

Not  Enforced  by  Supreme  Court  in  Annul- 
ment of  State  Statutes 

While  the  supreme  court  of  the  United 
States  has  in  strong  terms  affirmed  that  the 
separation  of  powers  is  one  of  the  chief  merits 
of  our  system  of  constitutional  law,  it  has 
declined  uniformly  to  make  this  a  ground  of 
annulment  of  state  statutes. 

Thus,  it  was  held  in  1829-"  that  there  was 
nothing    in    the    constitution    of    the    United 

23  For  full  discussion  of  this  subject  see  Bondi  on 
the  Separation  of  Governmental  Powers. 

24  State  ex  rel.  v.  Tolle,  71  Mo.  645. 

25  See  Satterlee  v.  Matthewson,  2d  Peters  380. 

33 


THE  JUDICIARY 

States  which  forbade  the  legislature  of  the 
state  to  exercise  judicial  functions.  It  has 
also  been  ruled  since  the  adoption  of  the  four- 
teenth amendment  that  the  guaranty  of  the 
due  process  of  law  does  not  interfere  with 
the  determination  by  a  state,  in  allotting  mat- 
ters properly  belonging  to  one  department  of 
the  government  to  another.  This  principle  has 
been  applied  in  a  variety  of  cases.  Most 
important  of  all  was  that  raised  in  connection 
with  the  so-called  direct  legislation,  wherein 
the  court  decided  that  neither  guaranty  of  a 
republican  form  of  government  nor  the  due 
process  of  law  under  the  fourteenth  amend- 
ment prevented  a  state  from  adopting  the 
initiative  and  referendum,  though  it  was  stren- 
uously urged  that  this  system  of  direct  legisla- 
tion was  not  a  republican  representative  gov- 
ernment in  the  sense  contemplated  by  the 
constitution.-"  The  court  based  its  conclu- 
sion upon  the  essential  difference  between 
26  U.  S.  Tel.  &  Tel.  Co.  v.  Oregon,  222>  U.  S.  118. 
34 


AND  THE  PEOPLE 

political  and  judicial  power,  and,  following  the 
ruling  in  Luther  v.  Borden,-"  declared  that  this 
guaranty  of  a  republican  form  of  government 
is  a  duty  resting  upon  congress  to  determine 
what  government  was  the  established  one  in 
a  state ;  and  the  decision  of  the  state  could 
not  be  questioned  in  a  federal  judicial  tri- 
bunal.28 

It  seems,  therefore,  that  the  question,  not 
only  of  which  of  the  two  contending  govern- 
ments is  the  lawful  government  in  a  state,  but 
also  the  question  of  whether  the  government 
established  is  republican  in  form  within  the 
meaning  of  the  constitution  of  the  United 
States,  is  for  the  legislative,  and  not  for  the 
judicial,  department  of  the  government  to 
determine.  It  is  clearly  established  that  the 
distribution  by  a  state  of  the  different  func- 
tions   of    government    among    the    different 

27  7th  How,  p.  1. 

28  See  also  Mississippi  v.  Johnson,  4  Wal.  475; 
State  of  Georgia  v.  Stanton,  6  Wal.  p.  50. 

35 


THE  JUDICIARY 

departments,  that  is,  the  state's  own  deter- 
mination of  what  modification  is  required  of 
the  principle  of  the  separation  of  the  govern- 
mental powers,  is  not  reviewable  under  the 
constitution  of  the  United  States.  It  will  be 
seen  that  this  distinction  between  political  and 
judicial  power  is  one  that  is  made  on  the 
continent  of  Europe  to  a  far  greater  extent 
than  it  is  in  the  United  States. 

Non- Judicial  Duties  in  State  Courts 

In  the  practical  working  of  this  principle  of 
the  separation  of  the  powers  of  government, 
we  must  not  overlook  the  fact  that  the  exam- 
ple set  by  the  first  congress  in  imposing  upon 
the  judiciary  non-judicial  duties  has  been  fol- 
lowed not  infrequently  in  different  states. 
Sometimes  this  has  assumed  the  form  of 
imposing  upon  the  judiciary  administrative 
duties,  such  as  the  making  of  apportionments 
of  territory  for  election  purposes,  and  also  of 
making  appointments  for  what  are  consid- 
36 


AND  THE  PEOPLE 

ered  non-political  offices,  such  as  boards  of 
equalization  or  taxation  review  and  the  like. 
Sometimes  these  duties  have  been  performed 
and  sometimes  they  have  been  declined.  This 
disposition,  however,  as  in  the  acts  of  congress 
on  the  pension  lists,  does  not  indicate  a  want 
of  confidence  in  the  judiciary,  nor  a  disposi- 
tion to  impair  its  independence ;  but,  on  the 
contrary,  indicates  a  distinct  confidence  in  the 
fairness  of  the  judges  and  a  disposition  to 
make  use  of  their  presumed  impartiality  in 
rendering  a  non-partisan  service.  The  tend- 
ency, however,  is  to  be  deprecated  as  imposing 
an  improper  burden  on  the  judiciary  and  one 
inconsistent  with  the  independent  character  of 
the  office. 

Exercise  of  Judicial  Powers  by  Legislative 
Bodies 

On  the  other  hand,  we  have  had  instances 
in  this  country  of  the  exercise  of  what  are 
essentially  judicial  powers  by  legislative  bodies. 
37 


±6047'3 


THE  JUDICIARY 

Thus,  in  some  of  the  states,  judicial  powers 
were  vested  in  the  state  senates  as  appellate 
courts  after  the  fashion  of  the  House  of  Lords 
of  the  English  Parliament.  This  plan  was 
adopted  in  New  York,  New  Jersey  and  other 
states,  but  the  arrangement  may  be  said  to 
have  been  definitely  abandoned  as  unsatis- 
factory both  to  the  bar  and  to  the  public.^'' 
Thus  bills  of  attainder,  which  were  ex- 
pressly forbidden  by  the  federal  constitution 
and  by  nearly  all  of  the  state  constitutions, 
but  which  were  frequent  in  England  under  the 
Tudors  and  Stuarts,  were  an  illustration  of 
the  exercise  of  the  judicial  power  by  legisla- 
tion. The  power  of  impeachment  vested  by 
the  constitution  in  congress,  and  by  similar 
provisions  of  the  constitutions  of  several 
states  in  their  legislatures,  are  illustrations  of 
what  is  deemed  the  proper  exercise  of  the 
judicial  power  by  a  legislative  body.     In  the 

-9  See  Sharswood  in  Note  to  Blackstone,  Bk.  Ill, 
p.  56. 

38 


AND  THE  PEOPLE 

early  history  of  the  country,  legislative 
divorces  were  known  in  some  states ;  but  now 
by  the  constitutions  of  many  states  they  are 
directly  forbidden. 

Another  illustration  of  the  exercise  of  judi- 
cial and  quasi-judicial  functions  by  legislative 
bodies  is  in  the  determination  of  contests  for 
seats  in  the  legislative  bodies.  In  this  country 
such  contests  are,  as  a  rule,  determined  by  the 
body  itself,  which  is  made  judge  of  the  qualifi- 
cations of  its  own  members.  A  different  rule 
prevails  in  England,  where  such  matters  are 
determined  judicially  by  the  courts  of  law. 

The    Appellate    Jurisdiction    of    House    of 
Lords 

The  most  notable  instance  of  the  exercise  of 
a  judicial  power  by  a  legislative  body  is  in  the 
appellate  jurisdiction  that  is  exercised  by  the 
English  House  of  Lords.  This,  however,  is 
really  an  illustration  of  the  tremendous  force 
of  custom,  or  what  Mr.  Dicey  terms  one  of 
39 


THE  JUDICIARY 

the  "conventions"  of  the  EngHsh  law.  There 
are  some  six  hundred  members  of  the  Enghsh 
House  of  Lords,  and  nominally  each  member 
has  a  right,  whether  learned  in  the  law  or  not, 
to  participate  in  all  the  sittings  of  that  body. 
The  exercise  of  this  appellate  jurisdiction  is 
made  practically  possible  through  the  volun- 
tary abstention  of  all  but  the  law  lords,  espe- 
cially appointed  for  that  purpose,  from  the 
hearing  and  decision  of  causes  on  appeal. 
President  LowelP*'  says : 

"The  unwritten  rule  that  only  law  Lords 
shall  sit  when  the  house  meets  for  judicial 
business  is  one  of  the  conventions  of  the  Con- 
stitution that  is  most  strictly  observed,  and  if 
it  were  not  rigidly  followed,  the  position  of 
the  House  as  a  court  of  law  would  be  dis- 
credited. It  is  a  striking  example  of  the  force 
of  custom  in  England  that  the  reputation,  the 
condition  and  continued  existence  of  the  high- 

so  Government  of  England,  Vol.  2,  p.  465. 
For  a  discussion  in  the  House  of  Lords  as  to  this 
duty  of  lay  members  to  refrain   from  voting  on  a 
decision    of    an    appeal    case,    see    O'Connell    v.    the 
Queen,  1844,  11th  CI.  &  F.  421,  et  seq. 

40 


AND  THE  PEOPLE 

est  tribunal  should  depend  upon  the  unbroken 
maintenance  of  a  condition  which  any  one  of 
the  six  hundred  members  has  the  power  to 
break." 

Modem  Administrative  Commissions 

The  modern  exigencies  of  government,  how- 
ever, have  compelled  the  exercise  of  adminis- 
trative powers  in  England  and  the  United 
States,  as  well  as  on  the  continent  of  Europe, 
which  were  unknown  in  Montesquieu's  time. 
Thus,  the  regulation  of  public  utilities  by  rail- 
road commissions  and  other  public  commis- 
sions, has  necessitated  the  delegation  of  what 
would  be  classed  as  legislative  and  also  as 
executive  powers  to  administrative  boards. 
The  constitutionality  of  these  delegations  of 
power  has  been  uniformly  sustained  in  the 
courts  of  the  states  and  of  the  United  States.^^ 

31  See  Express  Co.  v.  Railroad  Co.,  Ill  N.  C.  463 ; 
Burlington,  etc.,  R.  R.  Co.  v.  Dey,  82  Iowa  312; 
Chicago,  etc.,  R.  R.  Co.  v.  Jones,  149  III.  361 ;  Georgia, 
etc.,  R.  R.  Co.  V.  Smith,  70  Ga.  694;  also  Railroad 
Commission  Cases,  116  U.  S.  307. 

41 


THE  JUDICIARY 

Sometimes  these  commissions  have  been  vested 
with  what  may  be  termed  judicial  powers,  or 
quasi-judicial  powers. 

It  has  been  held,  however,  by  the  supreme 
court,^-  that  it  is  not  the  name  of  the  body, 
that  is,  whether  it  is  a  legislature,  or  a  commis- 
sion, or  a  court,  which  determines  whether  the 
proceedings  are  legislative  or  judicial  in  char- 
acter. A  judicial  inquiry  investigates,  declares 
and  enforces  liabilities  as  they  stand  on  present 
or  supposed  facts,  and  on  laws  supposed 
already  to  exist.  Legislation,  on  the  other 
hand,  looks  to  the  future  and  changes  existing 
conditions  by  making  a  new  rule  to  be  applied 
thereafter  to  all  or  some  part  of  those  subject 
to  its  power.  This  is  the  fundamental  dis- 
tinction as  declared  by  the  supreme  court 
between  legislative  and  judicial  proceedings. 

The  Interstate  Commerce  Commission 

The  Interstate  Commerce  Commission,  with 

32  Va.  Corporation  Commission  case,  211  U.  S.  210. 
42 


AND  THE  PEOPLE 

its  powers  enlarged  by  statutes  as  well  as  by 
judicial  construction,  is  a  unique  illustration 
of  an  administrative  board  vested  witb  tbe 
different  powers  of  government.  As  an  admin- 
istrative board,  it  enforces  the  executive  power 
of  investigation  and  prosecution ;  as  a  quasi- 
judicial  board,  it  exercises  the  judicial  func- 
tion of  determining  the  reasonableness  of 
existing  rates  and  of  suspending  a  proposed 
increase  of  rates  pending  investigation ;  and 
also  of  finding  undue  discriminations  and  pref- 
erences entitling  the  claimant  to  reparation, 
and  its  findings  and  award  of  damages  are 
given  prima  facie  weight  in  any  judicial  pro- 
ceeding to  enforce  the  same.  It  also  exercises 
what  has  been  repeatedly  adjudged  to  be  the 
essentially  legislative  power  in  fixing  rates  for 
the  future. 

Modern  Criticism  of  Montesquieu's  Maxim 

This  modern  creation  of  a  department  of 
administration,  recognized  and  necessitated  by 
43 


THE  JUDICIARY 

the  complexity  of  the  functions  of  modern 
government,  has  been  commented  on  by  some 
jurists  as  indicating  that  the  classification  of 
Montesquieu  is  lacking  in  both  scientific  and 
practical  foundation.  Attention  has  been  di- 
rected to  the  impossibility  of  enforcing  this 
principle  as  a  constitutional  guaranty,  and  it 
has  been  said  that  the  true  classification  of 
governmental  powers  is  into  the  subdivisions 
of  "political"  on  the  one  hand  and  "administra- 
tive" on  the  other,  the  term  "administrative"  to 
include  all  the  manifestations  of  executive 
action  with  the  administration  of  judicial 
affairs  through  the  courts.^^ 

On  the  other  hand,  the  classification  of 
Montesquieu  has  been  criticised  on  the  dis- 
tinctly practical  ground  that  it  is  inconsistent 
with  the  modern  view  of  business  efficiency, 
which  calls  for  the  concentration  and  not  the 

33  Prof.  Frank  J.  Goodnow  in  Politics  and  Admin- 
istration (p.  18)  and  Comparative  Administrative 
Law.  See  also  Gneist,  Preface  to  English  Constitu- 
tional History. 

44 


AND  THE  PEOPLE 

division  of  responsibility.''"*  This  criticism, 
however,  is  not  directed  against  the  independ- 
ence of  the  judicial  power,  but  deals  solely 
with  the  question  of  the  separation  of  the 
legislative  and  executive  departments  of  the 
government.  Thus  it  has  been  said  that  the 
commission  form  of  government  for  cities, 
which  combines  legislative  and  executive 
departments,  does  not  impair  popular  govern- 
ment, but  does  locate  definite  responsibility, 
and  thus  tends  to  prevent  the  abuses  of  muni- 
cipal government. 

Conceded  Independence  of  Judicial  Power 

It  is  apart  from  our  subject,  however,  to 
discuss  this  question  of  the  separation  of  the 
powers,  except  in  relation  to  the  independence 
of  the  judicial  power.  Whatever  may  be  the 
difference  of  opinion  as  to  the  maintenance  of 
this  theory  of  the  separation  of  the  powers 

34  See  Address  of  Walker  D.  Hincs  before  Bar 
Association  of  the  State  of  Kansas,  January  27,  1913. 

45 


THE  JUDICIARY 

between  the  executive  and  the  legislative  under 
modern  conditions,  and  particularly  in  the 
government  of  our  modern  cities,  it  is  still 
recognized  that  the  maxim  formulated  by 
Montesquieu  has  been  of  vast  importance  in 
emphasizing  the  independence  of  the  judiciary, 
and  to  this  extent  it  has  been  thoroughly  estab- 
lished in  the  constitutional  system  of  this 
country  as  a  great  fundamental  principle  of 
free  government.  Its  true  meaning  is  that  the 
whole  power  of  one  of  the  departments  should 
not  be  exercised  by  the  same  hand  which 
possesses  the  whole  power  of  either  of  the 
other  departments.  The  science  of  govern- 
ment is  a  practical  one  and  the  incidental 
exercise  of  powers  of  one  department  by  the 
other  can  not  impair  this  governing  principle.^^ 
This  principle  of  constitutional  government 
has  had  a  radically  different  interpretation  in 
France  and  other  continental  countries   from 

35  See     Bondi     on     Separation     of     Governmental 
Powers. 

46 


AND  THE  PEOPLE 

that  adopted  in  Anglo-Saxon  countries,  and  we 
shall  see  that  it  has  been  reconciled  with  the 
written  constitution  construed  and  enforced  by 
the  judicial  power  of  the  United  States,  and 
with  the  unwritten  and  so-called  flexible  con- 
stitution and  a  sovereign  parliament  in  Eng- 
land. Notwithstanding  this  different  con- 
struction and  application  of  the  fundamental 
maxim  formulated  by  Montesquieu,  the  great 
central  principle  of  the  independence  of  the 
judicial  power  remains  unquestioned  as  the 
cornerstone  of  constitutional  government  in 
the  United  States. 


47 


Page 

Foot 
Note 

5 

1 

6 

2 

7 

3 

8 

4 

9 

5 

10 

6 

11 

7 

12 

8 

14 

9 

Green  Bag,  February,  1913. 

Aristotle  Politics,  Book  6,  ch.  XIV. 

Iliad,  18,  508. 

Tacitus'  Germania,  c.  13. 

Freeman's  Growth  of  English  Constitution, 

ch.  1. 
Exodus,  ch.  18. 
1  Samuel  7:  15,  and  8:  1. 
High  Court  of  Parliament  and  its  Suprem- 
acy,    by     Mcllwain.       Yale     University 
Press,  1910. 
Kilbourne  v.  Thompson,  103  U.  S.  168. 
May's    Parliamentary    Practices,    9th    Ed., 
p.  754. 
16       10     Spirit  of  the  Laws,   Book  XI,  c.  6   (Nu- 

gent's  Translation). 
19       11     Thayer's  Constitutional  Cases,  Vol.  I,  p.  6. 
21       12    Vol.  I,  pp.  54,  55  and  56,  Lowell's  Govern- 
ment and  Parties  in  Continental  Europe. 
Also  Baldwin's  American  Judiciary,  ch.  3. 
2Z       13     Dillon's  Laws  and  Jurisprudence  of  Eng- 
land and  America,  p.  115. 
14     Baldwin's  American  Judiciary,  ch.  3. 

24  15     Dicey's  Law  of  the  Constitution,  7th  Ed., 

pp.  365,  366. 
Mcllwain's  High  Court  of  Parliament  and 
its  Supremacy,  p.  319.     Yale  University 
Press,  1910. 
16     Sir  Henry  Maine  on  Popular  Government, 
p.  218. 

25  17     Story  on  the  Constitution,  5th  Ed.,  p.  393. 

48 


AND  THE  PEOPLE 

Foot 
Page  Note  Citations 

26  18     Part   I,   Art.  30    (Constitution   of   Massa- 

chusetts). 

27  19     Article  I   (Constitution  of  Kentucky). 

29  20     Hayburn's  Case,  2  Dallas  410. 

21     Kilbourne  v.  Thompson,  103  U.  S.  168. 

30  22     Stimson  on  Law  of  the  State  and  Federal 

Constitution,  p.  50. 

33  23     Bondi    on    Separation    of    Governmental 

Powers,  Columbia  University  Press, 
1896. 

24  State  ex  rel.  v.  Tolle,  71  Mo.  645. 

25  Satterlee  v.  Matthewson,  2d  Peters  380. 

34  26    U.  S.  Tel.  &  Tel.  Co.  v.  Oregon,  223  U.  S. 

118. 

35  27    7th  How.,  p.  1. 

28     Mississippi  v.  Johnson,  4  Wal.  475;   State 
of  Georgia  v.  Stanton,  6  Wal.,  p.  50. 
38      29    Sharswood  in  Note  to  Blackstone,  Bk.  HI, 
p.  56. 

40  30    Lowell's  Government  of  England,  Vol.  2, 

p.  465. 
O'Connell  v.  the  Queen.   1844,  11th  CI.  &  F. 
421,  et  seq. 

41  31     Express   Co.   v.   Railroad   Co.,    Ill   N.   C. 

463;  Burlington,  etc.,  R.  R.  Co.  v.  Dey, 
82  Iowa  312;  Chicago,  etc.,  R.  R.  Co.  v. 
Jones,  149  111.  361;  Georgia,  etc.,  R.  R. 
Co.  V.  Smith,  70  Ga.  694;  also  Railroad 
Commission  Cases,  116  U.  S.  307. 

42  32     Virginia    Corporation     Commission    case, 

211  U.  S.  210. 

49 


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Foot 
Page  Note  Citations 

44  33     Prof.    Frank   J.    Goodnow,    "Politics    and 

Administration"  (p.  18)  and  Compara- 
tive Administrative  Law.  Gneist,  Pre- 
face  to  English  Constitutional  History. 

45  34    Address  of  Walker  D.  Hines  before  Bar 

Association  of  the  State  of  Kansas, 
January  27,  1913. 

46  35     Bondi    on     Separation    of    Governmental 

Powers,  Columbia  University  Press, 
1896. 


50 


CONTENTS 
II 

PAGE 

Power  of  Judiciary  as  to  Executive  Acts  53 
The  Continental  View  .  .  .  .54 

Natural  Law  in  the  Courts  of  England 

and  the  United  States     .  .  .56 

The  Sovereignty  of  English  Parliament  .  61 
Constitutional     Law     in     England     and 

United  States  .  .  .  .63 

Rigid  and  Flexible  Constitutions     .  .     64 

The  Judicial  Power  in  the  United  States 

Constitution   .  .  .  .  .66 

Hamilton's      Construction      of      Judicial 

Power  in  United  States  Constitution  67 
Jefferson  and  Madison  on  Same     .  .     68 

Chief    Justice    Marshall    in    Marbury    v. 

Madison 72 

The  State-Rights  Opposition  .  .  .73 

Justice  Gibson  on  the  Judicial  Power       .     74 

51 


THE  JUDICIARY 

PAGE 

The  Supremacy  of  Judicial  Power  in  a 

Federal   Government        .  .  .76 

Illustrated  by  Other  Federal  Systems       .      78 
The    Judicial    Committee    of    the    Privy 

Council  .  .  .  .  .81 

The  Judicial  Power  Considered  Irrespec- 
tive of  the  Federal  System       .  .     84 
Professor  Thayer  on  Same     .          .  .85 
The  Continental  System  Compared  .     86 
The  Term  "Unconstitutional"  as  Under- 
stood   under    Different    Systems    of 

Law 87 

Historical  Origin  of  American  System     .     89 
Debate  in  the  Constitutional  Convention 

of  1789  on  a  Revising  Judiciary         .      91 
Source  of  the  American   Conception  of 

Judicial  Power        .  .  .  .93 


52 


II 

The  Relation  of  the  Judicial  to  the 
Legislative  Power 

In  the  last  lecture  were  considered  the 
maxim  of  the  separation  of  the  powers  of 
government  as  formulated  by  Montesquieu, 
its  constitutional  and  statutory  recognition  in 
England,  the  United  States  and  on  the  conti- 
nent of  Europe,  and  its  necessary  qualification 
in  the  complexity  of  modern  government.  We 
are  now  brought  to  the  discussion  of  the  rela- 
tion of  the  power  of  the  judiciary  to  the  other 
departments  of  government. 

The  Power  of  Judiciary  as  to  Executive  Acts 

No  question  is  now  made  in  England  or  the 
United  States,  and  I  may  add  in  any  English- 
speaking  country,  as  to  the  right  of  the  judi- 
ciary to  determine  the  validity  of  acts  of  the 
executive  branch  of  the  government.  This 
53 


THE  JUDICIARY 

was  the  issue  between  the  Stuarts  and  Par- 
liament in  the  seventeenth  century.  The 
revolution  of  1688  and  the  Bill  of  Rights  repu- 
diated the  claim  of  the  power  of  dispensation, 
that  is,  of  suspending  by  royal  edict  the  opera- 
tion of  statute  law,  which  had  been  asserted 
by  James  II,  and  established  for  all  time 
among  English-speaking  people  the  subjection 
of  the  executive  power  to  the  rules  of  law 
declared  by  the  people  in  their  legislation,  as 
construed  by  their  courts. 

The  Continental  View 

This  principle,  however,  is  very  materially 
qualified  in  the  system  of  administrative  law 
which  prevails  in  France  and  other  continental 
countries,  to  which  attention  has  already  been 
called.  Under  this  so-called  administrative 
law,  the  government  and  every  servant  of  the 
government  possess,  says  Mr.  Dicey, ^  as 
representatives  of  the  nation,  a  whole  body  of 

1  Law  of  the  Constitution,  p.  186. 
54 


AND  THE  PEOPLE 

special  rights,  privileges  and  prerogatives  as 
against  private  citizens,  and  the  extent  of 
these  rights,  privileges  and  prerogatives  has 
to  be  determined  or  ascertained  before  the  law 
and  considerations,  which  fix  the  legal  rights 
and  duties  of  one  citizen  towards  another. 
These  questions  are  determined  by  adminis- 
trative courts,  at  the  head  of  which  stands  the 
Council  of  State.  These  so-called  courts  have 
in  comparatively  recent  times  acquired  to  a 
certain  extent  a  (}uasi-judicial  character  and 
have  adopted  a  quasi- judicial  procedure.^ 

We  have  observed  in  the  last  lecture  that 
this  continental  view  of  government  officials 
is  really  based  upon  their  construction  of  the 
maxim  of  separation  between  judicial  and 
administrative  powers.  The  principle  is  there 
asserted  that  administrative  bodies  must  never 
be  troubled  in  their  functions  by  any  act  what- 
ever of  the  judicial  power,  a  position  which  is 
radically  inconsistent  with  the  principle  recog- 

2  Dicey's  Law  of  the  Constitution,  p.  19L 
55 


TFIE  JUDICIARY 

nized  as  fundamental  law  in  England  and  the 
United  States,  that  of  equality  of  all  men 
before  the  law.  This  distinctive  application 
of  the  maxim  of  the  separation  of  the  powers 
has  also  a  direct  relation  to  the  Continental 
view  of  the  relation  of  the  judiciary  to  the 
legislative  power,  to  which  attention  will  be 
called  hereafter. 

Natural  Law  in  the  Courts  of  England  and 
the  United  States 

Turning  now  to  the  revolution  of  1688  in 
England,  whereby  legislative  and  judicial  inde- 
pendence of  executive  power  were  secured,  we 
find  that  this  was  followed  by  the  recognition, 
as  a  fundamental  principle  of  the  English  law, 
of  the  sovereignty  of  parliament.  Prior  to 
the  revolution  of  1688  the  doctrine  had  been 
declared  in  England  that  the  courts  were  com- 
petent to  decide  upon  the  rightfulness  or 
wrongfulness  and  to  ascertain  the  validity  or 
invalidity  of  statutes  upon  principles  of  natural 
56 


AND  THE  PEOPLE 

justice,  when  it  was  necessary  to  defend  the 
royal  prerogative  against  the  encroachments 
of  parliamentary  power.     Thus  Coke  said  :^ 

"And  it  appears  in  our  books  that  in  many 
cases  the  common  law  will  control  acts  of 
parliament,  and  sometimes  adjudge  them  to  be 
utterly  void ;  for  when  an  act  of  parliament  is 
against  the  common  right  or  reason  and 
repugnant  or  impossible  to  be  performed,  the 
common  law  will  control  it  and  adjudge  such 
act  to  be  void." 

This  principle  of  judicial  control  over 
legislation  was  extensively  discussed  both  in 
England  and  in  the  American  Colonies  in  the 
seventeenth  and  eighteenth  centuries,  and  was 
no  doubt  profoundly  impressed  upon  the 
founders  of  our  government.  It  has  from 
time  to  time  found  utterance  in  judicial  opin- 
ions in  this  country,  and  notably  in  the  words 
of  Justice  Miller,  in  the  case  of  Topeka  v. 
Loan  Association,  holding  invalid  bonds  issued 

3  Bonham's  case,  4th  Rep.,  Part  VIII,  p.  234.  See 
also  Coxe's  Judicial  Power  and  Unconstitutional 
Legislation,  p.  174. 

57 


THE  JUDICIARY 

by  the  city  in  aid  of  a  private  manufacturing 
company.'*    Thus  it  was  said : 

"The  theory  of  our  Government,  State  and 
national,  is  opposed  to  the  deposit  of  unhmited 
power  anywhere.  The  executive,  the  legisla- 
tive and  the  judicial  branches  of  these  govern- 
ments are  all  of  limited  and  defined  powers. 

"There  are  limitations  on  such  power  w^hich 
grow  out  of  the  essential  nature  of  all  free 
governments,  implied  reservations  of  individ- 
ual rights  without  which  the  social  compact 
could  not  exist,  and  which  are  respected  to  all 
governments,  entitled  to  the  name." 

"No  court,  for  instance,  would  hesitate  to 
declare  void  a  statute  which  enacted  that  A 
and  B,  who  are  husband  and  wife  to  each 
other,  should  be  so  no  longer ;  that  A  should 
thereafter  be  the  husband  of  C,  and  B  the  wife 
of  D,  or  which  should  enact  that  the  homestead 
owned  by  A  should  no  longer  be  his,  but  hence- 
forth be  the  property  of  D." 

Judge  Cooley,  in  his  Constitutional  Limita- 
tions,^ says : 

"There  was  never  a  written,  published  Con- 

4  20  Wallace,  p.  655. 

5  P.  2>1,  2nd  Ed. 

58 


AND  THE  PEOPLE 

stitution  which  delegated  to  functionaries  all 
the  latent  powers  which  lie  dormant  in  every 
nation,  which  are  boundless  in  extent  and  are 
incapable  of  definition."*' 

It  is  true,  as  declared  by  these  authorities, 
that  our  fundamental  rights,  in  which  are 
included  that  of  holding  and  alienating  private 
property,  do  not  owe  their  origin  to  our  written 
contitutions,  though  they  are  guarded  and 
protected  by  them.  They  measure  the  author- 
ity of  the  rulers,  but  they  do  not  measure  the 
rights  of  the  governed. 

This  opinion  in  the  Loan  Association  case, 
though  rendered  after  the  Fourteenth  Amend- 
ment, was  not  based  upon  the  guaranties  of 
individual  rights  therein  contained.  We  shall 
see  in  the  discussion  of  this  amendment  that 
its  construction  has  really  rendered  academic 
this  invocation  of  natural  law ;  as  both  of  the 
instances  cited  by  Justice  Miller  of  violations 
of    domestic    and    property    rights    would    be 

^  See  also  Kent's  Commentaries,  Vol.  2,  p.  318,  etc. 
59 


THE  JUDICIARY 

annulled  under  the  "due  process  of  law"  guar- 
anteed by  both  federal  and  state  constitutions. 

In  England,  on  the  other  hand,  this  natural 
justice  theory  of  Coke  has  been  displaced  in 
the  administration  of  justice  by  the  recognition 
of  the  Sovereignty  of  Parliament. 

It  is  apart  from  the  purpose  of  these  lectures 
to  consider  the  different  conceptions  of  law  in 
the  English  and  American  courts  on  the  one 
hand,  and  that  of  the  continental  jurists  on 
the  other.  The  English  and  American  con- 
ception of  law  is  a  body  of  rules  enforced  by 
the  courts  and  is  therefore  distinguished  from 
the  so-called  natural  law  which  is  discussed 
by  the  jurists  of  Germany  and  other  conti- 
nental countries  and  which  is  suggested  in  the 
opinion  of  Lord  Coke  and  the  others  cited. 
This  conception  of  law  in  England  and  the 
United  States  includes  not  only  the  statutes 
enacted  by  the  legislature  and  construed  and 
enforced  by  the  courts,  but  also  the  rules 
declared  by  the  courts  in  concrete  cases,  and 
60 


AND  THE  PEOPLE 

therefore  followed  by  the  courts  under  the 
law  of  judicial  precedent ;  in  other  words,  what 
has  been  termed,  "judge-made  law."^  The  law 
enforced  by  the  Courts  of  England  and  the 
United  States,  which  we  have  to  consider,  is 
that  which  is  defined  by  Mr.  Holland  as  a 
general  rule  of  external  human  action  enforced 
by  a  sovereign  political  authority.^ 

The  Sovereignty  of  English  Parhament 

After  the  English  revolution  of  1688,  the 
principle  of  the  sovereignty  of  Parliament, 
which  was  voiced  by  Blackstone,  became  thor- 
oughly established.  Thus  in  his  10th  Rule  for 
construing  statutes,*^  he  says : 

"If  the  Parliament  would  positively  enact 
a  thing  to  be  done  which  is  unreasonable,  I 
know  of  no  power  in  the  ordinary  forms  of 

''^  Lowell's  Government  of  England,  Vol.  H,  ch.  61 
and  62. 

s  Holland's  Elements  of  Jurisprudence,  2d  Ed., 
p.  34. 

9  1  Blackstone,  p.  91. 

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THE  JUDICIARY 

the  constitution  which  is  vested  with  authority 
to  control  it ;  and  the  examples  usually  alleged 
in  support  of  this  sense  of  the  rule  do  none  of 
them  prove,  that,  where  the  main  object  of 
the  statute  is  unreasonable,  the  judges  are  at 
liberty  to  reject  it ;  if  they  were  to  set  the 
judicial  power  above  that  of  the  legislature,  it 
would  be  subversive  of  all  government." 

He  illustrates  this  by  saying  that : 

"If  Parliament  gave  power  to  a  man  to  try 
all  cases  arising  in  his  manor,  the  act  would  not 
be  construed  to  extend  to  a  case  therein  aris- 
ing wherein  he  is  himself  a  party.  But  if 
the  Parliament  should  indicate  that  he  should 
try  his  own  case  as  well  as  those  of  other 
people,  there  is  no  court  that  has  power  to 
defeat  the  intent  of  the  legislature,  when 
couched  in  such  express  terms  as  to  leave  no 
doubt  of  the  intent." 

He  says  that  nothing  but  a  revolution  could 
destroy  this  power,  and  he  concludes : 

"So  long,  therefore,  as  the  English  Consti- 
tution lasts,  we  will  venture  to  affirm  that  the 
power  of  Parliament  is  absolute  and  without 
control." 

63 


AND  THE  PEOPLE 

Constitutioncd  Law  in  England  and  United 
States 

The  sovereignty  of  the  EngUsh  ParHament 
was  really  the  historical  outgrowth  of  a  legis- 
lative body  in  a  country  without  a  written 
constitution.  The  term  "Constitutional  T.aw," 
which  is  so  familiar  in  this  country,  is  in  the 
English  courts  unknown  in  the  sense  in  which 
we  use  the  term.  The  Constitution  of  Eng- 
land has  been  termed  by  Mr.  Bryce/"  and  this 
term  has  also  been  adopted  by  Mr.  Dicey/* 
a  "flexible  Constitution."  That  is,  every  part 
of  it  can  be  expunged,  remodeled,  amended  or 
abolished  with  equal  ease;  and  on  the  other 
hand,  there  does  not  exist  in  any  part  of  the 
British  Empire  any  person  or  body  of  persons, 
executive,  legislative  or  judicial,  which  can 
pronounce  void  any  enactment  passed  by  the 
British    parliament    on    the    ground    of    such 

^•^  Studies  in  History  and  Jurisprudence,  pp.  128, 
130. 

11  Dicey's  Law  of  the  Constitution,  p.  84. 

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enactment  being  opposed  to  the  constitution, 
or  on  any  ground  whatever,  except,  of  course, 
its  being  repealed  by  parliament.  The  con- 
stitution of  England,  therefore,  as  that  of 
ancient  Rome,  was  developed  historically, 
through  a  series  of  acts  which  in  their  totality 
may  be  called  the  Constitution,  but  each  of 
which  is  alterable  by  legislative  authority  like 
other  laws. 

Rigid  and  Flexible  Constitutions 

On  the  other  hand,  the  same  authorities  term 
the  constitution  of  the  United  States,  and 
other  countries  having  written  constitutions, 
as  "rigid  constitutions."  And  they  condemn 
the  classification  of  "written"  constitutions  and 
"unwritten"  constitutions  as  inadequate. 

It  necessarily  follows,  then,  that  with  a 
flexible  constitution  and  a  sovereign  parlia- 
ment there  can  be  no  constitutional  law 
administered  by  the  courts  as  we  understand 
the  term.  We  have  this  underlying  distinction 
64 


AND  THE  PEOPLE 

between  the  two  countries,  that  in  England 
there  is  no  formal  or  rigid  written  constitu- 
tion, while  in  the  United  States  there  is.  This 
distinction,  therefore,  lies  at  the  basis  of  our 
inquiry  as  to  the  origin  of  our  system  of  con- 
stitutional law,  wherein  the  courts  freely 
exercise  the  power  of  declaring  void  acts  of 
the  legislative  authority  on  the  ground  that 
they  are  inconsistent  with  the  fundamental 
law  declared  in  the  written  Constitution. 

Mr.  Bryce,  in  his  "American  Common- 
wealth,"'- tells  the  story  of  an  intelligent 
Englishman  who  had  heard  that  the  supreme 
federal  court  was  created  to  protect  the  con- 
stitution and  had  authority  given  it  to  annul 
all  laws,  who  spent  two  days  in  reading  up  and 
down  the  federal  constitution  for  the  pro- 
visions he  had  been  told  to  admire.  And  Mr. 
Bryce  adds  that  no  wonder  he  did  not  find  it, 
for  there  is  not  a  word  in  the  constitution  on 
the  subject. 

12  Vol.  I,  p.  246. 

65 


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The   Judicial   Power   in   the   United   States 
Constitution 

While  there  is  no  express  power  given  to 
the  courts  on  this  subject,  there  are  clauses  in 
the  constitution  of  the  United  States  which 
it  seems  clearly  point  to  and  imply  the  exist- 
ence of  such  a  power,  and  were  inserted  for 
the  purpose  of  directing  the  scope  and  manner 
of  its  exercise.  We  have  first  the  jurisdiction 
clause.  Section  2  of  Article  III,  extending  the 
judicial  power  to  "all  cases  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of 
the  United  States,  and  treaties  made  or  which 
shall    be    made    under    their    authority,"    and 

so  on And  "In  all  cases  affecting 

ambassadors,  other  public  ministers  and  con- 
suls, and  those  in  which  a  State  shall  be  a 
party,  the  Supreme  Court  shall  have  original 
jurisdiction." 

And  still  more  pointedly  in  what  has  been 
termed  the  Treaty  Clause  in  Article  VI : 

"This    constitution    and    the    laws    of    the 
66 


AND  THE  PEOPLE 

United  States  which  shall  be  made  in  pursu- 
ance thereof,  and  all  treaties  made  or  which 
shall  be  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  state  shall  be 
bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwith- 
standing." 

Hamilton's  Construction  of  Judicial  Power 
in  United  States  Constitution 

It  is  true  the  power  of  the  judiciary  to 
declare  legislation  void  is  not  declared  in  the 
constitution  in  express  terms,  and  neither 
was  it  expressly  declared  in  any  of  the  State 
constitutions  made  prior  to  this  time.  In  tlie 
discussions  preceding  the  adoption  of  the 
constitution,  however,  the  existence  of  this 
power  was  directly  asserted  as  necessarily 
implied  in  a  written  constitution.  This  was 
the  view  of  the  Federalist.^"    Thus  in  the  78th 

13  See  1  Federalist,  47  and  48,  Madison;  51,  Hamil- 
ton and  Madison;  60,  70,  IZ,  77,  78,  80  and  81, 
Hamilton. 

67 


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Federalist  (Hamilton),  it  was  said  that 
there  was  no  position  that  depends  on  clearer 
principles  than  that  every  act  of  a  delegated 
authority  contrary  to  the  declaration  of  the 
law  under  which  it  is  exercised,  is  void.  No 
legislative  act,  therefore,  contrary  to  the 
constitution,  can  be  valid.  To  deny  this 
would  be  to  affirm  that  the  deputy  is  greater 
than  his  principal,  that  the  servant  is  greater 
than  his  master.  And  he  combats  in  the 
strongest  terms  the  contention  that  the  mem- 
bers of  a  legislative  body  were  themselves  the 
constitutional  judges  of  their  power. 

Jefferson  and  Madison  on  Same 

It  is  interesting  to  note  in  this  history  of 
the  adoption  of  the  constitution  the  corre- 
spondence between  !Mr.  Jefferson,  who  was 
then  in  France,  and  Air.  Aladison,  with  refer- 
ence to  the  necessity  of  a  Bill  of  Rights  in 
the  constitution,  which  should  guard  liberty 
68 


AND  THE  PEOPLE 

against  the  legislative  as  well  as  against  the 
executive  branch  of  the  government.  Mr. 
Jefferson  was  opposed  to  the  constitution  on 
the  ground  of  the  absence  of  such  a  Bill  of 
Rights,  and  he  advanced  as  an  argument  of 
great  weight  the  legal  check  which  it  puts  in 
the  hands  of  the  judiciary.  Mr.  Madison 
favored  the  adoption  of  a  Federal  Bill  of 
Rights,  though  he  was  disposed  to  doubt  its 
efficiency  in  a  popular  government ;  and  he 
wrote  to  Mr.  Jefferson  these  memorable 
words : 

"Wherever  the  real  power  in  the  govern- 
ment lies,  there  is  danger  of  oppression.  In 
our  government,  the  real  power  lies  in  the 
majority  of  the  community,  and  the  invasion 
of  private  rights  is  chiefly  to  be  apprehended 
not  from  acts  of  the  government  contrary  to 
the  sense  of  the  constituents,  but  from  acts  in 
which  the  government  is  a  mere  instrument  of 
the  major  number  of  constituents.  This  is  a 
truth  of  great  importance,  but  yet  not  suffi- 
ciently attended  to,  and  is  probably  more 
strongly  impressed  on  my  mind  by  facts,  and 

69 


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suggestions  by  them,  than  on  yours,  which 
has  contemplated  the  abuses  of  power  issuing 
from  a  very  different  quarter.  Where  there 
is  an  interest  and  a  power  to  do  wrong,  wrong 
will  generally  be  done,  and  not  the  less  readily 
by  a  powerful  and  interested  party,  than  by  a 
powerful  and  interested  prince." 

He  suggests,  however,  that  a  Bill  of  Rights 
in  a  popular  government  might  serve  the  pur- 
pose of  declaring  political  truths  in  a  solemn 
manner,  so  that  they  might  acquire  by  degrees 
the  fundamental  maxims  of  a  free  government. 

Mr.  Hamilton,  on  the  contrary,  in  the  Xo. 
84  Federalist,  and  the  same  opinion  was  held 
by  Mr.  \\'ilson,  urges  not  only  the  entire 
futility,  but  even  the  possible  danger  in  a  Bill 
of  Rights,  in  that  an  imperfect  enumeration 
might  imply  powers  not  so  enumerated,  and 
that  the  Constitution  was  itself  a  Bill  of 
Rights.  But  Mr.  Jefferson's  view  prevailed. 
The  people  refused  to  allow  any  form  of  unde- 
fined power  over  their  liberties  and  property, 
and  it  was  found  impossible  to  secure  the 
70 


AND  THE  PEOPLE 

ratification  of  the  constitution  by  tlic  several 
States  except  in  connection  with  a  recommen- 
dation of  amenchiicnts  in  the  nature  of  a  Bill 
of  Rights  to  be  thereafter  submitted  by  con- 
gress for  ratification.  Accordingly,  out  of  a 
larger  number,  over  one  hundred,  which  were 
submitted  by  the  several  states  to  the  first 
congress,  the  first  ten  amendments  to  the 
constitution  were  submitted  to  the  States  in 
1789  and  thereafter  duly  ratified.  This 
declaration  of  rights  thus  originating  in  the 
federal  constitution  and  followed  by  several 
declarations  in  succeeding  state  constitutions, 
and  finally  supplemented  in  1866  by  the  Four- 
teenth Amendment,  which  throws  the  protec- 
tion of  the  federal  power  over  individual 
rights  against  invasion  by  state  authority, 
were  all  expressly  designed  to  be  what  their 
English  precedents  had  never  been,  and  in  the 
nature  of  the  English  system  could  not  be, 
constitutional  restraints  upon  the  legislative 
power. 

71 


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Chief  Justice  Marshall   in   Marbury  versus 
Madison 

We  have  seen  that  in  the  Federahst  advo- 
cating the  adoption  of  the  constitution,  the 
principle  was  declared  that  under  a  written 
constitution  the  judicial  power  must  neces- 
sarily extend  to  declaring  void  a  legislative  act 
in  conflict  with  the  constitution,  and  that  no 
legislative  act  contrary  to  the  constitution 
could  be  valid. 

This  was  the  view  adopted  by  Chief  Justice 
Marshall  in  his  opinion  in  the  case  of  Marbury 
v.  Madison.^*  The  Court  cited  no  precedents, 
but  held  it  was  the  duty  of  the  court  to  con- 
sider the  constitution  as  the  supreme  law,  and 
it  was  therefore  adjudged  that  the  section  of 
the  Judiciary  Act  organizing  the  judicial  sys- 
tem of  the  United  States  was  void,  because  it 
undertook  to  vest  original  jurisdiction  in  the 
Supreme  Court  in  mandamus,  which  was  in 
conflict  with  the  provision  of  the  constitution 

14  1  Cranch  137  (1803). 


AND  THE  PEOPLE 

fixing  the  jurisdiction  of  the  Court.  Kent 
says  as  to  this  decision/-''  "that  the  reasoning 
approaches  the  precision  and  certainty  of  a 
mathematical  demonstration,"  and  that  the 
question  may  be  regarded  as  finally  settled, 
and  he  considered  it  as  one  of  the  most  inter- 
esting opinions  in  favor  of  constitutional 
liberty  and  of  security  to  property  in  this 
country  that  has  ever  been  judicially  deter- 
mined. 

The  State  Rights  Opposition 

Notwithstanding  this  great  authority,  this 
extent  of  the  judicial  power  was  not  accepted 
without  question.  Especially  did  it  meet  with 
criticism  and  opposition  when  it  was  exercised 
by  Chief  Justice  Marshall  and  his  associates 
under  the  appellate  jurisdiction  over  the  high- 
est courts  of  the  State  under  the  judiciary  Act 
of  1789,  in  annulling  state  legislation  as 
violative   of   the    Federal    Constitution.      The 

1^  I  Kent's  Commentaries,  453. 
73 


THE  JUDICIARY 

jealousy  of  the  judicial  power  was  thus  com- 
plicated with  the  State  Rights  opposition  to 
any  enlargement  of  the  federal  power.  It 
was  in  connection  with  this  controversy  that 
Mr.  Jefferson  declared,  in  1833,  "In  truth, 
there  is  at  this  time  more  hostility  to  the 
federal  judiciary  than  to  any  other  organ  of 
the  government." 

Justice  Gibson  on  the  Judicial  Power 

In  1825  Justice  Gibson,  the  eminent  jurist 
on  the  Supreme  Bench  of  Pennsylvania,^**  in 
a  dissenting  opinion,  denied  the  abstract  right 
of  the  judiciary  to  declare  void  an  act  of  the 
legislature.  He  drew  a  distinction  between 
acts  that  were  repugnant  to  the  constitution 
of  the  state  and  acts  that  were  repugnant  to 
the  constitution  of  the  United  States,  holding 
that  the  judiciary  were  bound  to  execute  the 
former,  but  not  the  latter.  He  bases  this  dis- 
tinction upon  the  difference  between  political 

i6Eakin  V.  Kane,   12  S.  &  R.  330. 
74 


AND  THE  PEOPLE 

powers  and  purely  judicial  powers.  There 
was  no  grant  of  power  by  the  state  constitu- 
tion to  the  judiciary  to  declare  void  acts  of 
the  legislature.  On  the  other  hand,  in  regard 
to  acts  of  the  state  assembly  which  were  in 
conflict  with  the  constitution  and  laws  of  the 
United  States,  the  situation  was  exactly  the 
reverse,  as  it  was  expressly  provided  in  the 
sixth  article  and  the  second  section  of  the 
constitution  of  the  United  States  that  the 
constitution  should  be  the  supreme  law  of 
the  land,  and  the  judges  in  every  state  should 
be  bound  thereby.  This  he  said  was  an  ex- 
press grant  of  political  power  which  applied 
to  the  state  as  well  as  the  federal  judiciary. 
But  this  distinction  was  not  followed.  The 
rule  declared  in  Marbury  v.  Madison  was 
adopted  in  the  states,  in  some  of  them  ex- 
pressly declared  in  the  constitutions,  and  the 
power  has  been  continuously  exercised  by  the 
state  courts  with  reference  to  state  legisla- 
tion and  by  the  federal  courts  in  relation  to 
75 


THE  JUDICIARY 

both  state  and   federal  legislation  since  that 
time. 

It  is  interesting  to  note  that  Justice  Gibson 
abandoned  his  own  contention.  When  this 
opinion  was  cited  to  him  some  twenty  years 
afterwards,  in  1845,  he  remarked  to  counsel: 

"I  have  changed  that  opinion  for  two  rea- 
sons. The  late  convention  for  reframing  the 
Pennsylvania  Constitution  of  1838,  by  their 
silence,  sanctioned  the  proceedings  of  the 
courts  to  deal  freely  with  the  acts  of  the  legis- 
lature, and  from  my  own  experience  of  the 
necessity  of  the  case."^'^ 

The  Supremacy  of  Judicial  Power  in  a  Fed- 
eral Government 

Although  Justice  Gibson  abandoned  his  own 
contention  in  the  substantially  universal 
acquiescence  in  the  rule  declared  in  Marbury 
V.  ]\Iadison,  it  is  none  the  less  true  that  the 
distinction  pointed  out  l:)y  him,  based  upon 
the  nature  of  the  federal  government,  deserves 
thoughtful  consideration.     The  government  of 

i'^  Norris  v.  Klymer,  2  Pa.  St.  281. 
76 


AND  THE  PEOPLE 

the  United  States  was  not  only  novel  in  having 
a  formal  written  constitution,  but  it  was  also 
novel  in  the  governments  of  the  modern  world, 
in  that  it  was  a  complex  Federal  State,  includ- 
ing the  distinct  paramount  authority  and  sov- 
ereign power  of  the  federal  government,  with 
a  sovereign  power  in  the  federated  States.  In 
so  far  as  the  relations  of  the  federal  govern- 
ment to  the  states  were  concerned,  Justice 
Gibson  construed  the  constitution  as  giving 
an  express  grant  of  political  power,  applicable 
to  the  State  as  well  as  to  the  federal  judi- 
ciary, in  determining  whether  state  legislation 
was  violative  of  the  supreme  federal  law. 
Mr.  Dicey  in  his  Law  of  the  Constitvuion  has 
pointed  out^^  that  a  federal  compact  requires 
a  written  constitution,  and  that  without  it, 
misunderstandings  and  disagreements  would 
be  generated.  The  distribution  and  limitation 
of  powers  is  an  essential  feature  of  Federal- 
ism, and  this  division  of  powers  distinguishes 
18  Lecture  No.  4,  The  Law  of  the  Constitution. 
77 


THE  JUDICIARY 

a  federal  from  a  unitarian  system  of  gov- 
ernment. He  finds,  therefore,  that  there 
must  be  some  authority  in  a  federal  state 
of  guarding  against  legislation  inconsistent 
with  the  constitution,  and  he  says  it  is  the 
glory  of  the  founders  of  the  United  States, 
that  they  have  devised  an  arrangement 
whereby  the  constitution  is  made  in  reality, 
as  well  as  in  name,  the  supreme  law  of  the 
land,  and  that  they  have  attained  this  end  by 
adherence  to  a  very  obvious  principle,  and  by 
the  invention  of  an  appropriate  machinery  for 
carrying  this  principle  into  effect. 

Illustrated  by  Other  Federal  Systems 

Since  our  constitution  was  adopted  in  1789, 
which  is  termed  by  Mr.  Bryce^"^  as  the  first 
true  federal  state  founded  on  a  complete  and 
scientific  basis,  several  federal  states  have 
been  founded  with  constitutions  more  or  less 
modeled  after  that  of  the  United  States.    Thus 

1^  Studies  in  History  and  Jurisprudence,  p.  392. 
78 


AND  THE  PEOPLE 

we  have  the  constitution  of  the  Swiss  Federa- 
tion, enacted  in  184S  and  amended  in  1874; 
the  constitution  of  Canada  established  by  the 
British  North  American  Act  of  18(57;  the  con- 
stitution of  the  North  German  Federation  in 
1866,  enlarged  into  that  of  the  German  Empire 
in  1871 ;  and  still  later  the  organization  by 
the  Act  of  the  British  Parliament  in  compara- 
tively recent  times  of  the  constitution  for 
Australia ;  and  still  later  in  South  Africa.  The 
Federated  States  in  Central  and  South 
America  may  also  be  mentioned.  A  large 
part  of  the  world  is  now  organized  into  federal 
governments.  All  of  these  have  encountered 
the  necessity  of  providing  some  authority  for 
determining  the  relations  of  the  constituent 
parts  of  such  countries  to  the  federal  gov- 
ernment. In  Canada,  the  Dominion  govern- 
ment is  empowered  to  disallow  Provincial  acts 
which  are  illegal  or  unconstitutional,  and  we 
are  informed  by  Mr.  Dicey-*'  that  courts  with 
-^  See  Law  of  the  Constitution,  p.  155. 
79 


THE  JUDICIARY 

an  appeal  to  the  Judicial  Committee  of  the 
Privy  Council  inevitably  became  in  Canada, 
as  in  the  United  States,  the  interpreters  of 
the  constitution.  In  Australia  also  the  judicial 
power  is  relied  upon  for  the  determination  of 
constitutional  controversies,  with  appeal  under 
certain  conditions  to  the  Judicial  Committee 
of  the  Privy  Council  of  England.-^  On  the 
other  hand,  in  the  federated  governments  on 
the  continent  of  Europe,  that  is,  in  Switzer- 
land and  the  German  Empire,  while  it  seems 
that  the  same  necessity  for  an  authority  to 
assert  the  supremacy  of  the  federal  law  has 
been  recognized,  these  states  are  not  under 
the  influence  of  the  English  law  or  traditions, 
and  there  a  different  view  is  taken  of  the 
judicial  power,  and  courts  as  a  rule  cannot 
pass  upon  the  constitutionality  of  laws.  The 
supremacy  of  the  federal  authority  is  there- 
fore sustained   in  these   continental  countries 

21  See    Bryce's    Studies   in    History   and   Jurispru- 
dence, pp.  427-428. 

80 


AND  THE  PEOPLE 

by  the  political  and  not  the  judicial  authority. 
It  is  important  to  observe,  however,  that 
wherever  English  law  or  English  traditions 
prevail,  as  in  the  federated  self-governing 
colonies  of  England,  the  tendency  is  towards 
the  adoption  of  the  American  principle  of 
determining  by  judicial  authority  the  question 
necessarily  involved  in  the  enforcement  of  the 
written  constitution  of  a  federal  state. 

The  Judicial  Committee  of  the  Privy  Council 

This  necessity  of  some  authority  in  a  fed- 
erated government  for  adjudging  and  enforc- 
ing the  supremacy  of  the  central  government 
is  singularly  illustrated  in  the  Irish  Home  Rule 
Bill  which  is  now  pending  in  the  English  par- 
liament, having  passed  the  House  of  Commons, 
and  may  become  the  law,  notwithstanding  the 
opposition  of  the  House  of  Lords.  It  is  an 
essential  feature  of  this  scheme  that  the  acts 
of  the  Irish  Parliament  should  be  in  harmony 
with  the  supreme  authority  of  the  English 
81 


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parliament ;  and  it  is  provided  in  the  act  that 
this  supremacy  of  the  EngHsh  ParHament 
should  be  secured  by  referring  such  acts  whose 
validity  may  be  questioned  to  the  Judicial  Com- 
mittee of  the  Privy  Council,  the  modern 
survivor  of  the  ancient  Curia,  wherefrom  the 
Houses  of  Parliament  and  the  Courts  of  Law 
are  both  descended.  This  Judicial  Committee 
of  the  Privy  Council  is  composed  in  part 
of  the  law  lords  who  administer  the  appellate 
jurisdiction  of  the  House  of  Lords  under  the 
peculiar  constitution  of  that  body.  It  will  be 
seen  that  this  jurisdiction  of  the  Judicial  Com- 
mittee of  the  Privy  Council,  under  the  opera- 
tion of  this  Home  Rule  Bill,  is  essentially  the 
same  as  that  exercised  by  the  supreme  court 
of  the  United  States  in  determining  whether 
acts  of  the  states  are  valid  under  the  consti- 
tution of  the  United  States. 

Eminent    English    authorities    have    com- 
mented upon  the  effectiveness  of  the  system 
whereunder  our  Supreme  Court  maintains  the 
82 


AND  THE  PEOPLE 

integrity  of  our  federal  system.  In  the  words 
of  Mr.  Dicey,-^  "This  system  which  makes 
tlie  judges  guardians  of  the  constitution  pro- 
vides the  only  adequate  safeguard  which  has 
hitherto  been  invented,  against  unconstitu- 
tional legislation." 

It  may  yet  come  to  pass  that  this  Judicial 
Committee  of  the  Privy  Council  may  become 
the  Supreme  Court  of  the  British  Empire,  and 
England  may  thus  follow  our  example  in  pro- 
viding a  judicial  tribunal  for  determining  all 
constitutional  controversies.^^ 

--  See  Law  of  the  Constitution,  p.  129. 

23  The  law  officers  of  England  have  introduced  a 
bill  which  is  now  pending  before  Parliament,  entitled, 
"The  Appellate  Jurisdiction  Bill,"  whereunder  two 
new  judges  are  to  be  appointed  to  be  members  of 
the  highest  court  of  appeal,  both  for  the  United 
Kingdom  and  the  dominions  and  colonies,  and  this 
court  is  to  sit  exclusively  in  the  House  of  Lords  to 
hear  appeals  arising  in  the  United  Kingdom  and  in 
the  Privy  Council  in  respect  to  appeals  from  the 
colonies  and  dominions.  It  is  said  that  this  measure 
will  be  pressed  forward  and  thereby  an  attempt 
made  to  strengthen  the  House  of  Lords  and  the  Privy 
Council,  the  work  of  which  is  increasing  beyond  the 
capacity  of  those  tribunals  as  at  present  constituted. 

83 


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The  Judicial  Power  Considered  Irrespective 
of  the  Federal  System 

The  arguments  of  the  Federalist  and  the 
opinion  in  Marbury  v.  Madison,  however,  were 
not  based  upon  any  considerations  relating  to 
the  needs  of  the  federal  government,  but 
rested  upon  the  broad  principle  that  a  written 
constitution  was  necessarily  supreme  and  that 
the  judiciary  were  bound  to  refuse  to  enforce 
a  law  in  conflict  with  such  constitution.  This 
was  the  view  adopted  in  all  of  the  States, 
which  without  exception  have  followed  the 
rule  declared  in  Marbury  v.  Madison. 

As  we  have  seen,  this  principle  of  constitu- 
tional law  is  peculiar  to  the  United  States, 
and  necessarily  is  unknown  in  England,  as  it 
is  inapplicable  to  a  sovereign  Parliament  under 
a  flexible  constitution.  Notwithstanding  the 
long  acquiescence  in  the  exercise  of  this 
power  in  the  United  States,  it  has  in  modern 
times  been  brought  into  general  as  well  as 
84 


AND  THE  PEOPLE 

professional  discussion.-^  It  has  been  claimed 
that  the  arguments  of  the  Federalist  and  of 
Chief  Justice  Marshall  in  Marbury  v.  Madison, 
based  upon  the  essential  nature  of  a  written 
constitution,  were  inadequate,  as  written  con- 
stitutions had  been  adopted  on  the  continent 
of  Europe,  and  there  the  existence  of  such  a 
power  was  not  recognized.  It  is  asserted  by 
that  profound  jurist,  the  late  Professor 
Thayer,-^  in  discussing  the  origin  and  scope 
of  this  American  principle  of  constitutional 
law : 

Professor  Thayer  on  Same 

"So  as  the  grounds  of  this  remarkable  power 
is  found  in  the  mere  fact  of  the  constitution 
being  in  writing,  or  the  judges  being  sworn  to 
support  it,  they  are  quite  inadequate.  Neither 
the  written  form,  nor  the  oath  of  the  judges 
necessarily  involves  the  right  of  reversing,  dis- 
placing or  disregarding  any  action  of  the  legis- 
lature, or  the  executive,  which  those  depart- 

24  See  Address  of  Hon.  Walter  Clark  before  Law 
Department  of  the  University  of  Pennsylvania. 
2i5  Legal  Essays,  p.  2. 

85 


THE  JUDICIARY 

merits  are  constitutionally  authorized  to  take, 
or  the  determination  of  those  departments 
that  they  are  so  authorized.  It  is  enough,  in 
confirmation  of  this,  to  refer  to  the  fact  that 
other  countries,  as  France,  Germany  and 
Switzerland,  have  written  constitutions,  and 
that  such  a  power  is  not  recognized  there." 

The  Continental  System  Compared 

The  fundamental  distinction  between  the 
power  of  the  judiciary  under  the  English  and 
the  continental  law  has  already  been  pointed 
out.  The  legislature  on  the  continent  is  held 
to  be  the  judge  of  its  own  powers  under  the 
constitution.  The  principle  of  the  separation 
of  the  powers  of  government  has  been  very, 
differently  applied  in  the  continental  countries 
from  our  own.  The  constitution,  though 
written,  is  not  the  paramount  law  controlling 
the  judiciary  in  the  American  sense.  Thus  it 
has  been  ruled  in  the  Courts  of  Germany  that 
the  constitutional  provision  that  well-acquired 
rights  must  not  be  injured,  is  to  be  under- 
stood only  as  a  rule  for  the  legislative  power 
86 


AND  THE  PEOPLE 

itself  to  interpret.  In  other  words,  the  text 
is  addressed  to  the  legislature,  and  not  to  the 
judiciary."**  As  heretofore  shown,  on  the  con- 
tinent of  Europe,  the  courts  have  not  as  a  rule 
the  power  to  decide  upon  the  legality  or  ille- 
gality of  administrative  acts  or  of  executive 
officials.  This  radical  difiference  between  the 
power  of  the  courts  in  the  common  law  and 
civil  law  countries  has  been  explained  by  the 
fact  that  from  historical  reasons  the  common 
law  judiciary  is  strong,  while  in  the  civil  law 
countries  the  judiciary  is  feeble,  and  there- 
fore different  results  have  followed  as  to  the 
constitutional  acts  and  duties  of  the  judicial 
power. ^^ 

The  Term  "Unconstitutional"  as  Understood 
under  Different  Systems  of  Law 

This   distinction   between   the   English,   the 
United  States  and  the  continental  countries  is 

26  Coxe   on   Judicial    Power   and    Unconstitutional 
Legislation,  p.  lOL 

27  Same,  p.  103. 

87 


THE  JUDICIARY 

thus  interestingly  illustrated  by  Mr.  Dicey ,^^ 
in  the  different  meanings  in  those  countries  of 
the  term  "Unconstitutional"  as  applied  to  a 
law,  varying  according  to  the  nature  of  the 
Constitution  with  reference  to  which  it  is  used : 

1.  The  expression  as  applied  to  an  EngHsh 
act  of  Parliament  means  simply  that  the  act 
in  question  is,  in  the  opinion  of  the  speaker, 
opposed  to  the  spirit  of  the  English  constitu- 
tion; it  cannot  mean  that  the  act  is  either  a 
breach  of  law  or  void. 

2.  The  expression  as  applied  to  an  act  of 
the  French  Parliament,  means  that  the  law, 
as  one  extending  the  length  of  the  President's 
tenure  of  office,  is  opposed  to  the  articles  of 
the  constitution.  The  expression  does  not 
necessarily  mean  that  the  law  in  question  is 
void,  for  it  is  by  no  means  certain  that  any 
French  court  will  refuse  to  enforce  a  law 
because  it  is  unconstitutional.  The  term 
would  probably,  though  not  of  necessity,  be, 
when  employed  by  a  Frenchman,  a  term  of 
censure. 

3.  The  expression  as  applied  to  an  act  of 
congress  means  that  the  act  is  one  beyond  the 

28  See  Law  of  the  Constitution,  p.  167. 


AND  THE  PEOPLE 

power  of  congress,  and  is  therefore  void. 
The  word  does  not  in  this  case  necessarily 
import  any  censure  whatever.  An  American 
might,  without  any  inconsistency,  say  that  the 
act  of  congress  was  a  good  law ;  that  is,  a  law 
calculated  in  his  opinion  to  benefit  the  country, 
but  that  unfortunately  it  was  unconstitutional. 
That  is  to  say,  ultra  vires  and  void.  (The 
same  might  be  said  of  a  law  of  a  state.) 


Historical  Origin  of  American  System 

Though  we  may  concede  that  we  must  find 
the  origin  of  this  judicial  authority  in  the 
United  States  elsewhere  than  in  the  essential 
nature  of  the  written  constitution,  it  is  very 
clear  that  we  will  find  ample  reason  for  the 
existence  of  this  authority  in  the  political  his- 
tory and  experience  of  the  American  people 
before  the  war  of  independence.-^  We  were 
colonists,  governed  under  written  charters  of 
government  proceeding  from  the  English 
crown.    These  charters  were  so  many  written 

23  Thayer's  Legal  Essays,  p.  3. 


THE  JUDICIARY 

constitutions,  and  enforced  or  annulled  by 
judicial  decisions  and  an  ultimate  appeal  to 
the  Privy  Council.  When  the  revolution  came 
and  we  were  no  longer  bound  to  Great  Britain, 
our  written  constitution  took  the  place  of 
the  sovereign  authority  theretofore  existing. 
Time  will  not  permit  detailed  reference  to  the 
several  cases  in  the  colonial  courts  involving 
the  existence  of  this  power.  Reference,  how- 
ever, may  be  made  to  the  case  of  Winthrop  v. 
Letchmer,  which  was  appealed  from  the 
Superior  Court  of  Connecticut  to  the  King 
and  Council,  and  decided  in  the  reign  of 
George  I  in  1727.^°  In  this  case  it  was  ad- 
judged by  the  Privy  Council  that  the  statute 
of  the  colony  abolishing  the  common  law  rights 
of  primogeniture  was  void,  because  contrary 
to  the  laws  of  England.^^ 

3°  Colonial  Records  of  Connecticut,  Vol.  7,  p.  571. 
31  Coxe   on   Judicial    Power    and    Unconstitutional 
Legislation,  p.  208. 


90 


AND  THE  PEOPLE 

Debate  in  the  Constitutional  Convention  of 
1789  on  a  Revising  Judiciary 

In  the  federal  convention  of  1787  there 
was  an  interesting  discussion  of  the  proposition 
that  the  supreme  national  judiciary  should  be 
associated  with  the  executive  in  a  revisory 
power  over  the  legislative/^^  The  proposition 
was  discussed  on  several  different  occasions, 
but  was  finally  voted  down,  although  Connecti- 
cut voted  in  its  favor.  It  was  supported, 
among  others,  by  Mr.  Madison,  but  it  was 
opposed  on  the  ground  that  the  judiciary  ought 
not  to  interfere  in  determining  the  policy  of 
legislation.  In  the  discussion  on  June  4,  1787, 
Mr.  Gerry  said  that  he  doubted  whether  the 
judiciary  ought  to  form  a  part  of  the  Council 
of  Revision,  as  they  w^ould  have  a  sufficient 
check  in  their  department  by  their  exposition 
of  the  laws,  which  involved  the  power  of 
deciding  on  their  constitutionality.     He  said 

32  Farrand's  Records  of  Federal  Convention,  Vol. 
2,  pp.  IZ,  n  and  80. 

91 


THE  JUDICIARY 

that  in  some  States  judges  had  actually  set 
aside  laws  as  being  against  the  Constitution ; 
and  that  this  was  done  with  general  appro- 
bation. It  was  quite  foreign  from  the  nature 
of  their  offices  to  make  them  judges  of 
the  policy  of  public  measures.  Mr.  Wilson 
thought  perhaps  it  should  be  amended  so  as 
to  give  the  executive  and  judiciary  jointly  an 
absolute  negative  on  legislation.  But  it  was 
finally  voted  by  eight  to  two  to  give  this  re- 
visionary  control  to  the  executive,  without 
the  judiciary,  unless  overruled  by  two-thirds 
of  each  branch  of  the  legislature,  and  on  this 
Connecticut  voted  no.  x\nd  on  the  final  adop- 
tion of  the  proposition,  the  joinder  of  the 
judiciary  was  again  voted  down  by  three  ayes 
to  eight  noes,  Connecticut,  New  York  and 
Virginia  all  voting  aye. 

The   discussion   of    this   proposition    shows 

clearly    that    the    proposition    was    defeated 

because  it  was  deemed  unwise,  and  foreign  to 

the  judicial  office,  to  join  the  judiciary  in  this 

92 


AND  THE  PEOPLE 

revision  of  legislation,  when  the  same  judiciary 
would  be  called  upon  to  construe  and  deter- 
mine the  validity  of  such   legislation. 

Source  of  the  American  Conception  of  Judi- 
cial Power 

We  might  rightfully  conclude,  therefore, 
that  this  American  doctrine  as  to  the  judicial 
power  and  its  relation  to  the  legislative  as  well 
as  the  executive  power,  was  a  necessary  out- 
growth of  the  historic  antecedents  of  the 
American  people.  They  were  familiar  with 
the  application  of  the  same  principle  in  the 
judgments  of  the  Privy  Council  in  determining 
the  validity  of  their  colonial  legislation.  The 
doctrine  of  legislative  sovereignty  was  then 
comparatively  modern  in  English  history,  and 
our  American  colonists  had  a  profound  and 
deep-seated  conviction,  intensified  by  the  inci- 
dents of  their  colonial  government,  that  all 
the  powers  of  government  should  be  distinctly 
restrained  and  held  in  check  in  order  that 
93 


THE  JUDICIARY 

individual  liberty  might  be  protected.  Thus, 
under  the  circumstances  of  the  American  colo- 
nists, with  the  inheritance  of  the  struggle  of 
their  ancestors  for  freedom  in  England,  the 
doctrine  of  the  separation  of  the  powers  of 
government  and  the  independence  of  the  judi- 
ciary led  directly  to  the  conviction  that  written 
constitutions,  interpreted  and  enforced  by  an 
independent  judiciary,  were  essential  to  free 
government.^^ 

23  The  general  subject  of  this  lecture  has  been 
extensively  discussed  in  recent  years.  Among  these 
publications  may  be  mentioned  J.  Brinton  Coxe  on 
Judicial  Power  and  Unconstitutional  Legislation, 
Kay  &  Bro.,  Phila.,  1893 ;  Gov.  Baldwin's  American 
Judiciary,  Century  Co.,  1905;  Prof.  James  B. 
Thayer's  Legal  Essays,  Boston  Book  Co.,  1908; 
Chas.  Austin  Beard  on  Supreme  Court  and  the  Con- 
stitution, the  Macmillan  Co.,  1912;  J.  Hampton 
Dougherty  on  the  Power  of  Federal  Judiciary  over 
Legislation,  1912;  Prof.  A.  D.  McLaughlin  on  the 
Courts,  the  Constitution  and  Parties,  University  of 
Chicago  Press,  1912.  Address  of  Chief  Justice 
Walter  Clark,  of  North  Carolina,  before  the  Law 
Department  of  the  University  of  Pennsylvania, 
printed  in  Congressional  Record,  August  4,  1911. 


94 


''affe 

Foot 

Note 

54 

1 

55 

2 

57 

3 

58 

4  : 

5  ' 

59 

6 

61 

7  : 

II 


Citations 


Dicey's  Law  of  the  Constitution,  p.  186. 

Dicey's  Law  of  the  Constitution,  p.  191. 

Bonham's  case,  4th  Rep.,  Part  VIII,  p.  234. 

Also  Coxe's  Judicial  Power  and  Unconsti- 
tutional Legislation,  p.  174. 

20  Wallace,  p.  655. 

Cooley's  Constitutional  Limitations,  2nd 
Ed.  p.  Z1. 

Kent's  Commentaries,  Vol.  2,  p.  318,  etc. 

Lowell's  Government  of  England,  Vol.  II, 
ch.  61  and  62. 

Holland's  Elements  of  Jurisprudence,  2d 
Ed.,  p.  34. 

1  Blackstone,  p.  91. 

Bryce's  Studies  in  History  and  Jurispru- 
dence, pp.  128,  130. 

Dicey's  Law  of  the  Constitution,  p.  84. 

Bryce's  Am.  Com.,  Vol.  I,  p.  246. 

1  Federalist,  47  and  48,  Madison;  51, 
Hamilton  and  Madison;  60,  70,  12,,  77, 
78,  80  and  81,  Hamilton. 

1  Cranch  137  (1803). 

I  Kent's  Commentaries,  453. 

Eakin  v.  Kane,  12  S.  &  R.  330. 

Norris  v.  Klymer,  2  Pa.  St.  281. 

Dicey,  Lecture  No.  4  on  the  Law  of  the 
Constitution. 
78       19     Bryce,    Studies   in    History   and   Jurispru- 
dence, p.  392. 

95 


9 

6Z 

10 

11 

65 

12 

67 

13 

72 

14 

73, 

15 

74 

16 

76 

17 

77 

18 

THE  JUDICIARY 

Foot 
Page    Note  Citations 

79  20    Dicey,  Law  of  the  Constitution,  p.  155. 

80  21     Bryce's  Studies  in  History  and  Jurispru- 

dence, pp.  427-428. 
83      22     Dicey,  Law  of  the  Constitution,  p.  129. 
23     The  pending  Appellate  Jurisdiction  bill. 
85      24    Address  of  Hon.  Walter  Clark  before  Law 
Department  of  the  L^niversity  of  Penn- 
sylvania. 
25     Thayer's  Legal  Essays,  p.  2. 

87  26     Coxe  on  Judicial  Power  and  Unconstitu- 

tional Legislation,  p.  101. 
27     Same,  p.  103. 

88  28    Dicey,  Law  of  the  Constitution,  p.  167. 

89  29     Thayer's  Legal  Essays,  p.  3. 

90  30    Colonial  Records  of   Connecticut,  Vol.  7, 

p.  571. 
31     Coxe  on  Judicial  Power  and  Unconstitu- 
tional Legislation,  p.  208. 

91  32     Farrand's  Records  of  Federal  Convention, 

Vol.  2,  pp.  11,  77  and  80.     (Yale  Univer- 
sity Press,  1911.) 
94      2)2)     See  note. 


96 


CONTENTS 


III 

PAGE 

The  Judiciary  in  the  United  States  .  .      99 

Justice  Harlan  on  the  JntUcial  Power  in 

United  States  .  .  .  .101 

The  Judicial  Power  Only  Exercised  in  the 

Decision  of  Cases  ....  103 
Federal  and  State  Constitutions  Distin- 
guished .....  108 
The  Federal  Bill  of  Rights  .  .  .113 
The  Judiciary  Act  of  17S9  .  .  .  114 
The  Right  of  Review  of  State  Decisions  116 
The  Fourteenth  Amendment  .  .  .118 
Construction  of  the  Fourteenth  Amend- 
ment       119 

Justice  Miller  on  the  Fourteenth  Amend- 
ment       123 

Changed  Conditions  Affecting  Exercise  of 

Police  Power  of  States  .  .  .   125 

The  Effect  of  Fourteenth  Amendment  on 

Federal  Courts       .  .  .  .127 

97 


THE  JUDICIARY 

PAGE 

The  Twilight  Zone         .  .  .  .130 

The  Federal  and  Recent  State  Constitu- 
tions Contrasted     ....   133 

Excessive  Legislation  in  State  Constitu- 
tions       137 

The  Deterioration  of  Legislation     .  .   139 

Anomaly  of  Unreviewable  State  Con- 
struction of  Federal  Constitution       .   142 

More  Liberal  Construction  by  United 
States  Supreme  Court  of  Scope  of 
Police  Power  ....   145 

The     Supreme     Court     on     Progressive 

Character  of  Constitutional  Law       .   146 

The  United  States  Supreme  Court  and 
State  Courts  Contrasted  as  to  Annul- 
ling Legislation       ....   147 

The    Power   over   Legislation    Strictly   a 

Judicial  Power        ....   150 

Practical  Operation  of  Judicial  Power 
Illustrated  by  Income  Tax  Amend- 
ment     ......   153 


98 


Ill 

The  Judiciary  in  the  United  States 

In  the  preceding  lecture  we  have  considered 
the  separation  of  the  powers  of  government 
as  formulated  by  Montesquieu,  and  the  rela- 
tions of  the  power  of  the  judiciary  to  the 
executive  and  legislative  departments  in  the 
United  States,  and  also  as  developed  in  Eng- 
land and  on  the  continent  of  Europe.  We 
have  seen  that  in  England  the  historic  develop- 
ment of  a  sovereign  Parliament  has  resulted 
in  a  radically  different  relation  of  the  judiciary 
to  the  legislative  power  from  that  developed 
in  the  United  States,  in  that  the  judiciary  has 
no  power  to  annul  the  acts  of  Parliament, 
because  the  sovereignty  of  Parliament,  with 
an  unwritten  constitution,  precludes  the  en- 
forcement of  unconstitutionality  as  it  is  under- 
stood in  this  country.  On  the  other  hand,  on 
the  continent  of  Europe,  we  have  found  that 
99 


THE  JUDICIARY 

the  principle  of  the  separation  of  powers  has 
had  an  entirely  different  consideration  and 
development  from  that  prevailing  in  the 
United  States  or  in  England,  and  the  judiciary 
as  a  rule  have  no  power  to  determine  the  con- 
stitutionality of  legislative  acts,  even  where 
written  constitutions  exist. 

We  have  now  to  consider  the  historic  devel- 
opment of  the  judicial  power  in  the  United 
States.  It  may  be  said  in  general  terms,  with- 
out detailing  the  constitutions  of  the  several 
states,  which  have  grown  from  the  original 
thirteen  to  forty-eight,  that  the  principle  of 
the  separation  of  the  powers  of  government 
and  of  the  independence  of  the  judiciary,  has 
been  declared  in  all  of  them  in  language  more 
or  less  specific.  It  is  also  true  that  in  all  of 
them  the  principle  declared  by  Chief  Justice 
Marshall  in  Marbury  v.  Madison,  that  the 
constitution  is  necessarily  controlling,  when  the 
legislature  enacts  a  law  in  conflict  therewith, 
and  that  it  is  the  right  and  duty  of  the  judi- 
100 


AND  THE  PEOPLE 

ciary  to  declare  such  conflict  when  a  case  is 
judicially  presented  for  determination,  is  the 
established  and  all  but  unquestioned  law. 

Justice    Harlan    on    the    Judicial    Power    in 
United  States 

This  principle  thus  declared  in  the  United 
States  as  fundamental  in  constitutional  law  as 
to  the  power  of  the  judiciary,  and  sharply  dis- 
tinguished from  the  sovereignty  of  the  Eng- 
lish Parliament  on  the  one  hand  and  the  sub- 
ordinate position  of  the  judiciary  in  conti- 
nental countries,  is  nowhere  more  clearly 
announced  than  by  the  late  Justice  Harlan,  and 
his  long  experience  and  well-known  independ- 
ence of  character  gave  great  weight  to  his 
words.  Thus,  he  said  on  the  retirement  of 
his  colleague,  Mr.  Justice  Brown  :^ 

"We  all  take  pride  in  the  American  judicial 
system.  It  is  the  mainstay  of  our  civilization. 
As  so  organized,  it  is  unique  among  the  sys- 
tems established  for  the  safety  of  the  people 

1  40th  American  Law  Review,  p.  553. 

101 


THE  JUDICIARY 

and  for  the  security  of  personal  rights  and 
individual  freedom.  It  is  unique  because,  in 
this  land,  the  judgments  of  our  courts  can  not, 
as  in  some  countries,  be  reviewed  or  set  aside 
by  other  departments  of  the  government.  .  .  , 
With  us,  the  legislative  department  is  not  para- 
mount, except  within  the  limits  of  the  author- 
ity granted  to  it.  The  great  doctrine  of  the 
separate,  independent  exercise  of  judicial 
authority,  as  distinguished  from  legislative  and 
executive  authority,  is  essentially  American  in 
origin,  for,  while  the  thought  was  suggested 
by  a  European  publicist  shortly  prior  to  the 
Revolution,  it  was  not  distinctly  formulated 
or  embodied  in  any  governmental  document 
until  that  was  done  in  this  country  in  1776." 

To  the  same  effect  was  the  unanimous 
opinion  of  the  supreme  court  delivered  by 
the  same  justice,  declaring  the  statute  of  a 
state  to  be  void  as  violative  of  the  federal 
constitution,^  wherein  it  was  said : 

"This  function  and  duty  of  the  judiciary 
distinguishes  the  American  system  from  all 
other  systems  of  government.  The  perpetuity 
of  our  institutions  and  the  liberty  which  is 

2  Smyth  V.  Ames,  169  U.  S.  528. 
102 


AND  THE  PEOPLE 

enjoyed  under  them  depend  in  no  small  degree 
upon  the  power  of  the  judiciary  to  declare  null 
and  void  all  legislation  that  is  clearly  repug- 
nant to  the  supreme  law  of  the  land." 

The  Judicial  Power  Only  Exercised  in  the 
Decision  of  Cases 

This  judicial  power,  however,  can  only  be 
exercised  whether  in  the  federal  or  state 
courts,  when  a  case  between  parties  is  regu- 
larly presented  to  the  court  for  determination. 
This  is  a  distinctive  principle  of  American 
constitutional  law. 

In  England  the  Crown  was  originally  in 
fact,  as  it  still  is  in  theory,  the  foundation  of 
justice,  and  therefore  the  Council  of  the  King 
could  rightfully  call  for  the  opinion  of  the 
judges  appointed  by  the  Crown  on  any  matter 
pending  before  the  Council.  In  early  English 
history  the  judges  were  summoned  to  attend 
the  House  of  Lords  as  other  members;  but 
later  they  were  not  summoned  to  attend  as 
members,  but  were  expected  to  give  advice 
103 


THE  JUDICIARY 

when  required.  The  House  of  Lords  may  still 
call  upon  the  judges  for  an  opinion,  but  it  has 
been  declared  by  the  judges  that  they  would 
decline  to  answer  a  question  if  it  was  not 
confined  to  the  strict  legal  construction  of 
existing  laws.^ 

The  question  was  early  presented  to  the 
judges  of  the  Supreme  Court.  In  1795  Wash- 
ington, upon  the  advice  of  his  cabinet,  asked 

3  In  re  London  &  Westminster  Bank,  2  CI.  &  F. 
191.  This  was  in  relation  to  an  act  of  incorpora- 
tion pending  before  Parliament.  "The  House  of 
Lords  has  power  in  all  cases  to  call  on  the  judges  to 
attend  and  assist  them  in  their  deliberations  by  giving 
their  opinion  on  any  point  of  law  which  may  arise 
in  any  exercise  of  the  judicial  functions  of  the 
House.  This  is  frequently  done  in  the  case  of  peer- 
age claims.  The  House,  however,  need  not  agree 
with  the  advice  of  the  judges."  Halsbury  Laws  of 
England,  Vol.  9,  p.  23.  See  also  same,  Vol.  21,  pp. 
647-8. 

There  is  an  interesting  discussion  of  the  same 
subject  in  the  opinion  of  the  Judicial  Committee  of 
the  Privy  Council  in  Atty.  Gen.  v.  Atty.  Gen.,  106 
L.  T.  916,  holding  that  a  statute  of  the  Dominion 
Parliament  of  Canada  authorizing  the  questioning  of 
the  judges  of  the  Supreme  Court  was  not  ultra  vires. 
See  also  47  Am.  Law  Review,  286. 

104 


AND  THE  PEOPLE 

the  judges  of  the  Supreme  Court  for  an 
opinion  as  to  the  proper  construction  of  the 
clauses  of  the  treaty  with  France.  The 
judges  dechned  to  give  an  opinion,  holding 
that  it  would  not  be  proper  for  the  court  to 
give  an  opinion  upon  any  question  not  brought 
before  the  court  in  regular  form  in  some  par- 
ticular suit.  There  are  provisions  in  the  con- 
stitutions of  several  of  the  states  authorizing 
the  governor  or  legislature  to  call  upon  the 
supreme  court  of  the  state  for  an  opinion  as 
to  pending  legislation ;  but  the  courts  seem  to 
have  uniformly  held  that  such  opinions  are  not 
controlling  as  precedents,  when  cases  are 
thereafter  presented  to  them  between  contend- 
ing litigants  involving  the  same  question. 
Where  there  is  no  constitutional  authority,  it 
has  been  held  that  the  judges  are  not  bound  to 
answer  such  questions."* 

^  Thus,  in  33  Conn.  586,  the  judges  of  the  Supreme 
Court  declined  to  give  an  opinion  to  the  General 
Assembly  concerning  certain  proposed  legislation, 
there   being   no   constitutional    provision   authorizing 

105 


THE  JUDICIARY 

This  judicial  power,  as  recognized  in  the 
United  States,  must  therefore  remain  dormant 
and  legislative  acts  must  be  obeyed;  and  any- 
one, even  a  public  official,  refuses  obedience  at 
his  peril,  until  someone's  individual  case  is 
brought  before  the  court  for  judgment  and 
decided.  It  was  one  of  the  charges  of  im- 
peachment against  President  Andrew  Johnson 
that  he  had  refused  obedience  to  certain  acts 
of  congress,  alleging  the  same  to  be  unconstitu- 
tional ;  but  the  charge  was  not  sustained  by  the 
necessary  two-thirds  vote  required  for  con- 
viction. 

This  is  the  distinguishing  feature  of  our 
judicial  system  which  has  attracted  the  atten- 
tion of  foreign  observers.  It  has  been  well 
said  that  the  whole  system  of  Anglo-Saxon 
civil  liberty  has  really  been  built  up  upon  prin- 

the  same.  It  seems  that  the  same  judges  had  given 
opinions  to  the  General  Assembly  on  previous  occa- 
sions of  special  importance,  but  they  declined  to  con- 
sider such  action  as  a  precedent  controlling  their 
action. 

106 


AND  THE  PEOPLE 

ciples  settled  in  controversies  where  the  inter- 
ests and  Hberty  of  single  individuals  were 
alone  involved,  as  in  the  case  of  John  Hamp- 
den and  the  Ship  Money,  or  of  Wilkes  and  the 
Freedom  of  the  Press. 

The  court,  therefore,  only  decides  questions 
of  constitutional  law  when  such  questions  are 
raised  in  a  case  calling  for  decision.  It  is 
only,  therefore,  as  litigation  may  spring  up 
and  may  raise  the  point  of  constitutionality 
that  any  question  for  the  court  can  arise.^ 
Sir  Henry  Maine^  says  that  this  largely 
accounts  for  the  success  of  the  Supreme  Court 
of  the  United  States  in  the  determination  of 
constitutional  questions.  The  process  is  slower, 
but  it  is  freer,  he  says,  from  suspicion  of 
pressure,  and  much  less  provocative  of  jeal- 
ousy than  the  submission  of  broad  and  emer- 
gent political  propositions  to  a  divergent  politi- 
cal body.     This  latter  form  of  submission  is 

^  Thayer's  Constitutional  Cases,  Vol.  1,  p.  152. 
^  Popular  Government,  p.  223. 

107 


THE  JUDICIARY 

what  a  European  foreigner  thinks  of  when  he 
contemplates  a  court  of  justice  deciding  an 
alleged  violation  of  an  alleged  constitutional 
rule  or  principle.  It  will  be  seen  that  under 
this  principle,  a  court  can  only  decide  a  con- 
stitutional question  when  it  decides  a  case, 
that  grave  constitutional  questions  may  be  the 
subject  of  controversy  for  years  before  they 
are  adjudicated ;  and  such  was  the  case  of  the 
United  States  Bank,  and  also  the  matter  of 
the  power  of  congress  in  legislating  conc-ern- 
ing  slavery  in  the  territories  of  the  United 
States.  The  Missouri  Compromise  was  not 
declared  unconstitutional  until  some  thirty- 
seven  years  after  its  enactment. 

The  Federal  and  State  Constitutions  Distin- 
guished 

In  the  last  lecture  it  was   shown  that  the 
theory  of  the  natural  reservations  upon  legis- 
lative  power  growing  out   of  the   nature   of 
108 


AND  THE  PEOPLE 

free  government  has  given  i)lace  in  England  to 
a  sovereign  parliament  under  an  unwritten  or 
flexible  constitution,  and  in  this  country  to  a 
system  of  fixed  or  written  constitutions,  con- 
strued and  enforced  by  the  judicial  power,  in 
determining  the  conformity  of  legislation  to 
such  fundamental  law. 

It  is  unnecessary,  therefore,  further  to  con- 
sider opinions  referring  to  what  are  termed 
implied  reservations  between  legislative  power 
growing  out  of  the  nature  of  free  government, 
but  it  is  sufficient  to  state  the  doctrine  of 
American  constitutional  law  in  its  commonly 
accepted  terms :  That  from  the  very  nature  of 
our  complex  federal  government  the  courts 
look  into  the  federal  constitution  for  grants 
of  legislative  power  to  congress,  and  into 
both  the  federal  and  state  constitutions  for 
limitations  upon  the  power  of  the  state  legisla- 
tures, and  that  the  exercise  of  the  legislative 
power  of  them  within  the  scope  of  constitu- 
tional grants  or  limitations  will  not  be  ques- 
109 


THE  JUDICIARY 

tioned  by  the  courts  upon  considerations  of 
natural  justice  or  policy. 

Upon  such  questions,  the  determination 
of  the  legislative  power  within  its  constitu- 
tional limitations  is  conclusive.  The  distinc- 
tion thus  stated  between  the  federal  and 
state  constitutions  is  obvious  when  the  under- 
lying principles  of  our  federal  organization 
are  considered.  The  federal  constitution, 
though  ordained  and  established  by  the  people 
of  the  United  States,  distinctly  declared  that 
the  powers  not  delegated  to  the  United  States 
by  the  constitution,  nor  prohibited  by  it  to  the 
states,  Avere  reserved  to  the  states  respec- 
tively, or  to  the  people.  It  is  also  true  that, 
while  the  government  of  the  United  States  is 
one  of  the  enumerated  powers,  there  is  also  a 
national  sovereignty,  or  national  federal  state, 
within  the  scope  of  the  enumerated  powers, 
and  the  constitution  and  laws  of  the  United 
States  are  the  supreme  law  of  the  land.  The 
complexity  of  our  governmental  system  recog- 
110 


AND  THE  PEOPLE 

nizes  this  distinctly  sovereign  power  in  the 
federal  government  with  the  sovereign  powers 
in  the  states.  In  the  language  of  Chief  Jus- 
tice Marshall :" 

"In  America  the  powers  of  sovereignty  are 
divided  between  the  government  of  the  Union 
and  those  of  the  States.  They  are  each  sover- 
eign with  respect  to  the  rights  committed  to  it, 
and  neither  sovereign  with  respect  to  the  rights 
committed  to  the  other." 

It  necessarily  follows  that  the  federal  gov- 
ernment, being  one  of  enumerated  powers, 
and  the  legislative  power  being  limited  as  de- 
clared in  the  constitution,  the  legislative  acts 
of  congress  must  be  justified  by  the  express 
enumerations  of  the  constitution,  or  by  neces- 
sary implication  therefrom,  including,  as  de- 
clared by  the  Supreme  Court,  among  these 
powers  of  legislation  those  necessarily  involved 
in  the  national  sovereignty  created  by  the 
constitution,    w-ithin   the    scope    of    the    enu- 

"  McCullough  V.  Maryland,  4  Wheaton  316. 
Ill 


THE  JUDICIARY 

merated  powers.^  \\'ith  the  enumerated 
powers  must  also  be  included  what  has  been 
termed  the  coefficient  power  to  make  all  laws 
necessary  and  proper  to  carry  into  effect  the 
enumerated  powers. 

On  the  other  hand,  the  state  legislatures 
have  all  the  sovereignty  not  delegated  to  the 
government  of  the  United  States,  and  there- 
fore we  look  into  the  State  constitutions,  not 
for  the  grant  of  legislative  power  when  the 
validity  of  such  legislation  is  considered,  but 
for  limitations  thereon,  and  these  must  be 
specifically  declared  in  the  constitutions  of 
the  several  states.  We,  therefore,  look  into 
the  federal  constitution  for  the  grant  of 
powers  to  the  congress,  and  into  the  state 
constitutions  for  limitations  upon  the  power 
of  a  state,  when  the  legislative  acts  of  con- 
gress or  the  state  legislatures  are  called  in 
question  under  their  respective  constitutions. 

^^  JuilHard  v.  Greenman,  110  U.  S.  421. 
112 


AND  THE  PEOPLE 

The  Federal  Bill  of  Rights 

Reference  has  already  been  made  to  what 
may  be  called  the  federal  Bill  of  Rights,  the 
first  ten  amendments  to  the  federal  constitu- 
tion, which  were  proposed  by  Congress  and 
ratified  by  the  legislatures  of  the  several 
States  pursuant  to  the  Fifth  Article  of  the 
Constitution.  This  was  the  Bill  of  Rights 
intended  to  protect  the  citizen  against  the 
power  of  the  new  government  thus  created, 
and  which  Mr,  Jefferson  thought  should  be 
included  in  the  constitution,  and  the  adoption 
of  which  was  really  necessary  to  secure  the 
assent  of  the  states  to  the  ratification  of  the 
constitution.  These  amendments  all  contain 
limitations  upon  the  powers  of  congress,  and 
include,  among  other  things,  religious  liberty, 
the  right  to  bear  arms,  protection  against 
the  quartering  of  soldiers,  the  unreasonable 
searches  and  seizures,  the  guarantee  against 
the  deprivation  of  life,  liberty  or  property 
without  due  process  of  law,  against  the  taking 
113 


THE  JUDICIARY 

of  private  property  for  public  use  without  just 
compensation,  and  for  a  speedy  trial  in  crim- 
inal prosecutions,  and  the  like. 

These  amendments  have  been  invoked  in 
comparatively  few  cases,  as  the  power  of  Con- 
gress over  the  life,  liberty  and  property  of  the 
citizen  is  limited  by  the  comparatively  narrow 
scope  of  the  federal  power,  and  it  is  only  in 
comparatively  recent  years  that  the  extent  of 
the  federal  power  in  the  regulation  of  inter- 
state commerce  or  in  the  control  of  the  mails 
has  been  realized. 

The  Judiciary  Act  of  1789 

It  is  not  within  the  scope  of  this  lecture 
to  detail  the  organization  of  the  Federal 
courts,  nor  to  comment  upon  the  course  of 
decisions  therein,  further  than  to  illustrate  our 
general  topic  of  the  relation  of  the  American 
judiciary  to  the  people.  It  is  sufficient  to  say 
in  this  connection  that  congress  organized  the 
supreme  court  immediately  upon  the  adoption 
114 


AND  THE  PEOPLE 

of  the  constitution  and  has  since,  from  time  to 
time,  organized  inferior  courts.  By  what  is 
known  as  the  Juchciary  x'Vct  of  1789,  enacted 
at  the  first  session  of  congress  under  the 
constitution,  the  courts,  as  first  estabhshed, 
were  organized  and  the  supreme  court  was 
empowered  in  certain  cases  to  review  the 
decisions  of  the  highest  courts  of  the  States. 
By  this  act,  which  has  been  in  force  since 
that  time,  the  supreme  court  may  re-examine, 
reverse  or  aftirm  the  final  judgment  and  decree 
of  the  highest  court  of  a  state  in  which  a 
decision  can  be  had,  where  there  is  drawn  in 
question  the  vahdity  of  a  treaty  or  statute  and 
there  was  an  authority  exercised  under  the 
authority  of  the  United  States  and  the  decision 
of  the  highest  court  of  the  state  is  against 
that  validity ;  where  there  is  drawn  in  question 
the  validity  of  a  statute  of,  or  authority  exer- 
cised in  any  state,  on  the  ground  of  that 
being  repugnant  to  the  constitution,  treaties 
or  laws  of  the  United  States,  and  the  decision 
115 


THE  JUDICIARY 

of  the  state  court  is  in  favor  of  the  validity  of 
such  state  statute  or  authority ;  or  where 
there  is  drawn  in  question  the  construction  of 
any  clause  of  the  constitution  of  the  United 
States;  or  of  a  treaty  of  or  statute  of,  or  a 
commission  held  under  the  United  States,  and 
the  decision  of  the  state  court  is  as^ainst  the 
title,  right,  privilege  or  exemption,  specially 
set  up  or  claimed  by  the  other  party  there- 
under.^ 

The  Right  of  Review  of  State  Decisions 

This  provision  limiting  the  right  of  review 
by  the  supreme  court  to  cases  where  the 
federal  claim  was  denied,  was  based  upon  the 
assumption  that  the  party  complaining  did  not 
need  to  invoke  the  federal  authority  if  the 
decision  of  the  state  court  was  in  favor  of 
his  claim  of  the  federal  right.  In  the  last 
lecture  attention  was  called  to  the   fact  that 

9  709  R.  S.,  7  Am.  Stat.  468. 
116 


AND  THE  PEOPLE 

the  exercise  of  this  authority  thus  Hmited  met 
with    intense    opposition    when    the    su[)renie 
court  of  the   United  States  rendered  its  first 
decisions  reversing  the  supreme  courts  of  the 
states.     These  were  the  decisions  which  were 
bitterly  assailed  and  criticised  by  Mr.  Jeffer- 
son and  others  who  believed  that  this  assertion 
of  the  Federal  authority  involved  the  subjec- 
tion of  the  states.    It  is  an  interesting  illustra- 
tion   of    the    changed    conditions    of    public 
opinion,    that    now    there    is    a    demand,    not 
only    from    a   great   political    party,   but    also 
from    the    American    Bar    Association,    that 
this   right   of   review   should   be   extended   to 
cases  where  the  federal  right  is  sustained  as 
well  as  w^here  it  is  denied  by  the  state  court ; 
and   this   is   favored,   not  only  because   it   is 
deemed  that  it  is  best  that  we  should  have  a 
uniformity    of    ruling   on   claims    of    Federal 
right,  but  also  on  the  further  ground,  to  which 
reference    will   be   made    hereafter,    that    the 
supreme  court  of  the  United  States  is  deemed 
117 


THE  JUDICIARY 

to  take  a  broader  view  of  the  legislative  power 
on  so-called  social  questions  than  some  of  the 
state  courts. 

The  Fourteenth  Amendment 

The  judicial  framework  thus  established  at 
the  adoption  of  the  constitution  remained  sub- 
stantially unchanged  for  some  eighty  years, 
until  after  the  Civil  War,  when,  for  the 
avowed  purpose  of  protecting  the  recently 
enfranchised  freedmen  in  the  southern  states 
in  the  rights  of  American  citizenship,  the 
Fourteenth  Amendment  was  adopted,  succeed- 
ing the  thirteenth  amendment,  which  had 
abolished  slavery.  This  fourteenth  amend- 
ment not  only  declared  that  all  persons  born 
or  naturalized  in  the  United  States  and  sub- 
ject to  the  jurisdiction  thereof,  should  be 
citizens  of  the  United  States  and  of  the  states 
wherein  they  resided,  thus  effectually  annulling 
the  rule  declared  in  the  Dred  Scott  case,  but  in 
addition  thereto  declared  that  no  State  should 
118 


AND  THE  PEOPLE 

make  or  enforce  any  law  which  would  abridge 
the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  state  deprive  any 
person  of  life,  liberty  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws. 
This  amendment  was  adopted  through  the 
ratification  by  the  States,  and  proclaimed  as 
ratified  on  July  2,  1868. 

Construction  of  the  Fourteenth  Amendment 

This  amendment  has  had  an  interesting  judi- 
cial history.  When  the  first  important  case 
under  this  amendment  came  before  the  Su- 
preme Court  in  1872,^*^  it  was  held  that  the 
privileges  and  immunities  protected  by  the 
fourteenth  amendment  are  such  only  as  arise 
out  of  the  nature  and  character  of  the  Federal 
government,  and  that  no  fundamental  change 
had  been  effected  in  the  relations  of  the  state 

'°  Slaughter  House  Case,  16  Wallace  36. 
119 


THE  JUDICIARY 

and  federal  Governments.    In  this  case  it  was 
said: 

"We  doubt  very  much  whether  any  action 
by  the  state  not  directed  by  way  of  discrimi- 
nation against  the  negroes  as  a  class  or  on 
account  of  their  race,  will  ever  be  held  to 
come  within  the  purview  of  this  provision." 

It  was  also  held  in  the  early  construction  of 
the  amendment,  that  it  afforded  no  protection 
to  individual  invasion  of  individual  rights, 
and  that  congress  had  no  power  under  the 
amendment  to  make  positive  and  affirmative 
laws  for  its  enforcement.^^  Some  years  later 
it  was  ruled  by  the  court  that  corporations 
were  persons  within  the  meaning  of  the  pro- 
vision of  the  amendment  that  forbade  any 
state  to  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws,  and 
also  of  the  due  process  of  law.^^ 

11  United  States  v.  Cruikshank,  92  U.  S.  542. 

^2  Santa  Clara  Co.  v.  Southern  Pac.  R.  R.  Co., 
118  U.  S.  394;  Pembina  Mining  Co.  v.  Pennsylvania, 
125  U.  S.  181 ;  Minneapolis  &  St.  Louis  R.  R.  Co.  v. 
Beckwith,  129  U.  S.  26. 

120 


AND  THE  PEOPLE 

These  later  decisions  were  rendered  nearly 
twenty  years  after  the  adoption  of  the  amend- 
ment, and  since  that  time  the  vast  importance 
of  the  amendment  under  this  judicial  con- 
struction has  been  realized.  The  negro,  for 
whose  immediate  benefit  the  amendment  was 
enacted,  has  practically  disappeared  from  liti- 
gation under  the  amendment,  while  the  cases 
wherein  corporations  and  other  parties  have 
claimed  to  be  deprived  of  property  under  due 
process  of  law,  have  crowded  the  docket  of 
the  court.  It  was  then  realized  that  a  tre- 
mendous change  had  been  made  by  this  amend- 
ment in  the  extension  of  the  jurisdiction  of 
the  supreme  court,  and  that  the  guaranty  of 
due  process  of  law  and  the  equal  protection 
of  the  laws  now  protected  the  citizen,  corpor- 
ate as  well  as  individual,  against  any  exercise 
of  state  authority.  While  it  operated  upon  the 
state,  and  not  upon  individual  action,  it  ex- 
tended to  the  validity  of  any  act  of  the  State 
legislature  and  to  all  the  instrumentalities  by 
121 


THE  JUDICIARY 

which  the  state  acted,  so  that  whoever  by 
pubhc  position  under  the  state  government 
deprived  another  of  any  right  protected  by 
that  amendment,  violated  the  constitutional 
inhibition.^^ 

It  seems  that  despite  the  early  prediction 
of  the  court,  a  fundamental  change  was  made 
in  the  relation  of  the  federal  government  to 
the  states  in  that  now  the  federal  authority 
was  directly  extended  to  the  protection  of  the 
fundamental  rights  of  person  and  property 
within  the  states  against  the  exercise  of  any 
of  the  powers  of  the  state  through  any  of 
the  instrumentalities  of  the  state.  This  was 
a  profound  change,  the  importance  of  which 
is  being  realized  more  and  more. 

Justice   Miller   on   the   Fourteenth   Amend- 
ment 

In  an  interesting  opinion  of  the  supreme 
court,    delivered    some    nine    years    after    its 

13  Raymond  v.  Chicago  Traction  Co.,  207  U.  S.  35. 
122 


AND  THE  PEOPLE 

passage,  Justice  Miller/'  who  had  been  dis- 
posed at  first  to  give  a  limited  construction 
to  the  amendment,  commented  upon  the 
practical  working  of  the  fifth  and  four- 
teenth amendments  to  the  federal  constitu- 
tion, in  that  the  former,  a  prohibition  upon 
the  federal  government  against  depriving  a 
citizen  of  life,  liberty  or  property  without  due 
process  of  law,  had  been  rarely  invoked  or 
discussed  during  its  existence  of  nearly  a  cen- 
tury, while  the  latter,  only  adopted  some  nine 
years  before  as  a  restraint  upon  the  powers 
of  the  states,  had  already  crowded  the  docket 
of  the  court  with  cases  in  which  it  was  asked 
to  decide  that  citizens  had  been  deprived  by 
their  own  states  of  life,  liberty  or  property 
without  due  process  of  law. 

It  was  suggested  in  the  opinion  that  the 
increase  in  this  class  of  litigation  might  be 
owing  to  a  misconception  of  what  constituted 
due  process  of  law  ;  but  the  court  declined  in 

1-1  Davidson  v.  New  Orleans,  96  U.  S.  103. 
123 


THE  JUDICIARY 

this  case,  as  it  has  done  in  the  very  many 
cases  decided  since  that  time,  to  define  due 
process  of  law  or  the  equal  protection  of  the 
laws.  In  the  nature  of  things  the  terms  are 
not  definable,  and  their  application  to  a  con- 
crete case  as  it  is  presented  must  be  determined 
by  the  judicial  process  of  inclusion  and  exclu- 
sion. 

The  explanation  of  the  contrast  pointed  out 
in  the  opinion  referred  to  seems  to  lie  in  the 
fact,  that  it  is  the  comprehensive  and  all  per- 
vading police  power  of  the  state  and  not  the 
limited  power  of  the  federal  government 
which  comes  in  contact  with  the  fundamental 
rights  of  life,  liberty  or  property  secured  by 
these  amendments ;  and  it  is  against  the  inva- 
sion of  these  rights  under  the  police  power 
of  the  state  that  the  protection  of  these  con- 
stitutional guaranties  must  necessarily  be 
invoked.  The  effect  of  the  adoption  of  this 
amendment,  therefore,  was  to  give  the  citizen, 
whether  individual  or  corporate,  the  protection 
124 


AND  THE  PEOPLE 

of  the  federal  government  as  well  as  that  of 
his  own  state  against  any  exercise  of  author- 
ity by  the  state  which  is  violative  of  these 
fundamental  rights  of  life,  liberty  or  property. 

Changed  Conditions  Affecting  Exercise   of 
Police  Power  of  States 

More  than  a  human  generation  has  passed 
since  this  decision,  and  the  social  and  economic 
changes  in  that  time  have  forced  into  public 
and  judicial  discussion  as  never  before  the 
relation  of  the  fundamental  rights  of  the  indi- 
vidual to  the  police  power  of  the  state.  The 
stress  of  competition  in  business  has  led  to 
a  struggle  to  avoid  the  evil  of  excessive  compe- 
tition through  business  association,  and  public 
hostility  has  been  aroused  by  the  attempted 
elimination  of  competition  through  monopoly. 
Furthermore,  the  world-wide  discontent  with 
the  distribution  of  wealth  has  caused  a  distinct 
drift  in  the  direction  of  state  socialism  among 
the  masses ;  and  this  has  been  promoted  by  the 
125 


THE  JUDICIARY 

growth  of  humanitarianism  and  the  struggle 
for  social  betterment.  When  to  all  this  we  add 
the  superstition  that  legislation  is  a  sovereign 
cure-all  for  social  ills,  and  last,  but  not  least, 
the  agitation  of  reckless  politicians  with  the 
unthinking  vote,  we  have  potent  factors  in 
inducing  legislation,  which  has  forced  and  is 
forcing  upon  the  attention  of  the  profession 
and  upon  the  courts  a  new  class  of  constitu- 
tional questions,  and  these  are  the  weighty 
questions  of  our  time  in  jurisprudence  as  well 
as  in  social  economics. 

The  legislation  enacted  under  these  influ- 
ences, particularly  when  aimed  at  abridging 
individual  liberty  of  contract,  in  the  relations 
of  employer  and  employee,  not  infrequently 
involves  grave  questions  of  constitutional  law, 
both  as  to  due  process  of  law  and  the  equal 
protection  of  the  laws,  and  under  the  con- 
struction of  the  fourteenth  amendment  the 
validity  of  state  legislation  enforced  by  these 
influences  is  subject  to  the  final  determination 
136 


AND  THE  PEOPLE 

of  the  federal  authority  by  the  supreme  court 
of  the  United  States. 

The  Effect  of  the  Fourteenth  Amendment  on 
Federal  Courts 

Reference  is  made  to  the  enormous  increase 
of  litigation  under  the  fourteenth  amend- 
ment and  its  effect  in  crowding  the  docket  of 
the  supreme  court.  This  has  been  increased 
at  an  enormous  rate  since  the  change  was 
remarked  by  Justice  Miller.  It  seems  from 
a  compilation  in  a  recent  work^"'  that  from 
the  time  of  the  adoption  of  the  fourteenth 
amendment  to  the  close  of  its  term  in  1912, 
the  supreme  court  had  handed  down  six 
hundred  and  four  opinions  under  the  four- 
teenth amendment,  and  of  these  applications 
for  federal  interference  by  way  of  restraining 
or  annulling  state  action  only  fifty-five  were 
decided  adversely  to  the  state ;  that  is,  some 

15  Carroll  on  the  Fourteenth  Amendment  and  the 
States,  ch.  VII. 

127 


THE  JUDICIARY 

nine  per  cent.  This  would  indicate  that  the 
court  has  been  conservative  in  its  action  and 
liberal  in  its  view  of  the  state  legislative  power 
in  this  class  of  legislation.  It  should  be  remem- 
bered that  these  cases  have  come  before  the 
supreme  court  from  two  different  sources, 
one  by  writ  of  error  to  the  decisions  of  the 
highest  court  of  the  State,  this  remedy  being 
only  available  where  the  decision  of  the  State 
court  is  adverse  to  the  Federal  claim,  and  also 
in  direct  review  of  the  action  of  the  inferior 
federal  courts.  It  is  said  in  this  same  com- 
pilation that  the  intervention,  as  it  is  termed, 
of  the  federal  court,  in  the  cases  where  the 
state  action  was  declared  void,  involved  the 
annulment  in  whole  or  in  part  of  thirty-two 
statutes,  nine  city  ordinances,  and  a  portion 
of  four  state  constitutions.  I  quote  further 
from  the  same  authority : 

"As  to  the  total   number  of   the   fifty-five 

instances   of   interference,   eleven   were   made 

under    the    equal    protection    clause    of    the 

Amendment,  six  of  these  involving  the  right 

128 


AND  THE  PEOPLE 

of  negroes  to  sit  on  juries ;  fourteen  were 
made  under  the  equal  protection  and  the  due 
process  of  law  clause  considered  together. 
The  remaining  thirty  were  made  under  the 
due  process  of  law  alone ;  twenty  deprivation 
of  liberty  without  due  process  of  law  and 
twenty-eight  as  taking  property  without  due 
process  of  law."^'^ 

A  very  large  per  cent,  over  half,  were  cases 
wherein  corporations  were  complaining  of  the 
exercise  of  state  authority.  It  will  be  seen 
that  this  enormous  mass  of  litigation  has  been 
imposed  upon  the  supreme  court  in  addition 
to  the  volume  of  litigation  arising  under  the 
federal  statutes,  including  the  very  large 
amount  of  litigation  arising  under  the  com- 
merce clause.  The  growth  of  our  interstate 
commerce,  with  the  incidental  conflict  between 
federal  and  state  authority,  has  itself  pre- 
sented numerous  questions  under  the  power 
of  congress  to  regulate  commerce  which  have 
involved  the  validity  of  State  legislation. 

1^  Carroll  on  the  Fourteenth  Amendment  and  the 
States,  p.  106. 

129 


THE  JUDICIARY 

The  effect  of  all  this  has  been  to  increase 
the  burden  upon  tiie  supreme  court  of  the 
United  States;  and  necessarily  to  delay  the 
decisions  of  causes.  Notwithstanding  the 
establishment  of  the  circuit  courts  of  appeals 
some  twenty  years  since  for  the  express  pur- 
pose of  relieving  the  supreme  court  and  the 
placing  in  those  nine  courts  of  appeal  the  final 
determination  of  litigation  based  solely  upon 
the  difference  of  citizenship,  the  docket  of  the 
supreme  court  is  still  crowded,  and  the  con- 
gestion is  said  to  be  growing  worse  year  by 
year. 

The  Twilight  Zone 

The  litigation  under  the  Fourteenth  Amend- 
ment has  presented  an  anomaly,  which  is  of 
course  due  to  our  complex  form  of  govern- 
ment, with  its  system  of  dual  sovereignties. 
In  the  exercise  of  this  power  to  regulate  com- 
merce or  in  the  exercise  of  any  exclusive 
federal  power,  the  federal  authority,  when 
130 


AND  THE  PEOPLE 

exercised,  is  exclusive.  That  is  to  say,  any 
inconsistent  state  action  must  give  way  when 
the  federal  authority  is  exercised.  This  is 
not  the  case  with  the  exercise  of  the  annulling 
power  of  the  federal  government  through  the 
supreme  court,  when  it  is  invoked  against 
any  state  action  as  violative  of  due  process  of 
law  and  as  denying  the  equal  protection  of 
the  laws.  In  such  a  case  the  federal  govern- 
ment must  stop  with  its  annulling  of  the  state 
action.  It  cannot  go  on  and  affirmatively 
direct  what  action  the  state  should  or  can 
take.  This  has  created  what  has  been  termed 
the  "Twilight  Zone,"  in  that  in  such  contin- 
gency the  party  invoking  federal  protection 
can  escape  any  regulation,  as  the  state  author- 
ity is  paralyzed.-^^ 

This  broad  statement,  however,  must  be 
qualified  by  the  fact  that  where  the  State  au- 
thority is  annulled  because  of  the  excess  of  its 
interference  with  property  rights,  the  annul- 

1^  Carroll  on  Fourteenth  Amendment  and  the 
States,  ch.  10. 

131 


THE  JUDICIARY 

ment  by  the  federal  authority  only  goes  to 
that  excessive  exercise  of  the  state  authority 
and  has  no  effect  upon  the  exercise  of  the 
state  authority  of  regulation  within  lawful 
bounds.  This  would  apply  to  the  regulation 
of  rates  of  railroads  and  the  like,  when  the 
state  regulation  is  condemned  as  confiscatory 
in  the  denial  of  the  just  rights  of  property. 
Neither  would  there  be  any  "twilight  zone" 
where  only  a  specific  form  of  state  regulation 
or  interference  is  condemned,  as  the  com- 
plaining party  would  still  be  subject  to  all 
lawful  forms  of  state  regulation. 

There  is,  however,  a  legitimate  basis  for 
comment  and  complaint  in  the  inevitable  delays 
involved  in  the  suspension  of  the  exercise  of 
the  state  authority  pending  the  prosecution  of 
a  case  involving  the  validity  of  the  same  to 
the  supreme  court  of  the  United  States  for 
final  determination.  This  may  require  sev- 
eral years,  and  meantime  the  state  authority 
is  paralyzed,  though  of  course  the  complaining 
132 


AND  THE  PEOPLE 

party  in  such  a  case  prosecutes  such  htigation 
at  his  own  peril. 

The  Federal  and  Recent  State  Constitutions 
Contrasted 

This  situation  has  been  further  comphcated 
by  another  growing  tendency,  a  tendency  in- 
duced by  the  desire  to  restrain  and  Hmit  the 
legislative  power  in  the  states.  Thus,  the  con- 
stitution of  the  United  States  states  only  the 
broad  outlines  of  governmental  power,  with- 
out attempting  to  enumerate  in  detail  or  to 
specify  each  and  every  one.^^  It  has  proven 
fortunate,  indeed,  in  the  marvelous  expansion 
of  the  country  that  the  framers  of  the  con- 
stitution stated  the  federal  power  in  language 
so  broad  and  comprehensive  that  it  is  clearly 
applicable  to  the  complex  conditions  and 
agencies  of  present  commerce,  as  it  was  to  the 
simple  conditions  and  agencies  when  the  com- 
merce clause  of  the  constitution  was  adopted. 

^^  McCuIlough  V.  Maryland,  4  Wheaton  316. 
133 


THE  JUDICIARY 

This  great  principle  of  constitutional  law  is 
happily  illustrative  of  the  simple  and  compre- 
hensive phrases,  and  also  in  the  history  of  the 
commerce  clause.  In  the  graphic  language  of 
Justice  Brewer  :^^ 

"Constitutional  provisions  do  not  change, 
but  their  operation  extends  to  new  matters  as 
the  modes  of  business  and  the  methods  of  life 
of  the  people  vary  with  each  succeeding  gen- 
eration. The  law  of  the  common  carrier  is 
the  same  today  as  when  transportation  on  land 
was  by  coach  and  wagon,  and  on  water  or 
canal  by  the  sailing  vessel.  Yet  in  its  actual 
operation  it  touches  and  regulates  transpor- 
tation by  means  then  unknown,  the  railroad 
and  steamship.  Just  so  it  is  with  the  grant 
to  the  national  government  of  power  over 
interstate  commerce.  The  Constitution  has  not 
changed.  The  power  is  the  same.  But  it 
operates  today  upon  modes  of  interstate  com- 
merce unknown  to  the  fathers,  and  it  operates 
with  equal  force  upon  any  new  modes  of  such 
commerce  which  the  future  may  develop." 

Very  different  has  been  the  course  of  con- 
stitution making,  particularly  during  the  last 
19  In  re  Debs.  158  U.  S.  564. 
134 


AND  THE  PEOPLE 

fifty  years,  in  the  several  states.  The  earhcr 
state  constitutions  were  modeled  after  that  of 
the  United  States,  including  those  of  the  origi- 
nal states  which  preceded  the  federal  consti- 
tution, and  contain,  as  a  rule,  only  the  general 
outlines  of  governmental  organization.  Thus, 
the  constitution  of  Massachusetts,  after  setting 
forth  the  Bill  of  Rights  and  the  frame  of  gov- 
ernment, contains  no  directions  or  instructions 
or  limitations  upon  the  legislature,  save  that 
they  shall  enact  "all  manner  of  wholesome  and 
reasonable  laws  as  they  may  judge  for  the 
benefit  and  welfare  of  the  state." 

The  later  American  constitutions,  however, 
are  framed  on  a  very  different  principle,  and 
that  is,  they  are  filled  with  restrictions  upon 
the  law-making  power.  Some  of  the  most 
recent  have  become  veritable  codes  of  laws. 
Thus,  the  Missouri  constitution  of  1820, 
including  all  amendments  up  to  1865,  con- 
tained but  three  express  restrictions  upon  the 
powers  of  the  General  Assembly  to  pass  laws, 
135 


THE  JUDICIARY 

one  relating  to  banks,  another  to  slavery,  and 
a  third  prohibiting  legislative  divorces.  The 
constitution  of  1875,  now  in  force,  contains 
fifty-six  sections,  more  than  half  of  which 
either  prohibit  the  enactment  of  laws  upon 
designated  subjects,  or  for  designated  pur- 
poses, or  prescribe  in  detail  the  manner  of 
enacting,  amending  or  repealing  laws  already 
in  force.  Other  constitutions  enacted  in  the 
last  fifty  years  contain  substantially  the  same 
features.^*'  Not  only  has  special  legislation  been 

20  Henry  Hitchcock  on  American   State   Constitu- 
tions, 1887. 

Mr.  Stimson,  in  his  Federal  and  State  Constitu- 
tions, p.  69,  speaks  of  that  "extraordinary  develop- 
ment of  the  modern  State  constitution  which  tends 
to  reduce  all  law  making  to  constitutional  provisions; 
to  require  a  periodical  referendum;  and  to  a  great 
extent  to  do  away  with  representative  government. 
New  constitutions,  such  as  those  of  Alabama,  Louisi- 
ana and  the  seven  western  States,  evidently  seek 
to  embody  all  the  broad  notions  of  what  a  present 
majority  thinks  the  law  ought  to  be  into  the  organic 
law  of  the  State.  Necessarily  this  leads  to  the  em- 
bodying of  he  prejudice  and  caprice  of  the  moment 
into  the  constitution  itself ;  for  it  is  human  nature 
to  care  more  for  one's  peculiar  fancies  than  for 
commonplace  facts." 

136 


AND  THE  PEOPLE 

forbidden,  and  doubtless  wisely  where  the  sub- 
ject can  be  covered  by  general  legislation,  but 
the  discretion  of  the  general  assembly  is  so 
effectively  limited  that  constitutional  litigation 
is  involved  in  nearly  all  the  so-called  progres- 
sive legislation  which  is  enacted  in  the  states. 
Thus,  the  forms  of  indictment  are  prescribed 
in  some  constitutions,  and  this  has  led  to 
technical  decisions  which  have  been  the  sub- 
ject of  deserved  criticism. 

Effect  of  Excessive  Legislation  in  Constitu- 
tion 

Some  of  these  constitutional  restraints  are 
doubtless  occasioned  by  the  growth  of  special 
interests  and  the  multiplication  of  social  needs 
with  increasing  population  and  wealth ;  but  it 
is  none  the  less  true  that  this  excessive  re- 
straint upon  the  legislative  power  and  the  loss 
of  distinction  between  the  permanent  law  of 
the  constitution  and  the  enactment  of  legis- 
lation is  to  be  deplored,  not  only  because  it 
137 


THE  JUDICIARY 

multiplies  constitutional  questions  for  litiga- 
tion, but  it  also  aggravates  the  tendency,  which 
all  candid  men  must  admit  results  from  our 
rigid  written  constitutions,  both  State  and 
Federal,  in  that  they  not '  only  make  public 
opinion  slower,  but  they  tend  to  intensify  the 
professional  conservation  of  lawyers  and 
make  them  and  our  judges  strict  construction- 
ists. Thus,  they  are  prone  through  the  opera- 
tion of  this  tendency  to  ignore  the  substance 
in  searching  out  technical  arguments  and  ob- 
jections. All  of  this  aggravates  what  has  been 
justly  termed  the  excessive  contentious  spirit 
in  our  litigation  and  obscures  the  administra- 
tion of  justice.  The  remedy  lies  in  the  omis- 
sion of  such  detailed  legislation  in  our  consti- 
tutions, and  of  course  in  making  them  at  the 
same  time  readily  amendable,  that  is,  with 
provision  for  due  and  proper  consideration  of 
amendments.  They  should  be  modeled  after 
the  constitution  of  the  United  States  in  stating 
the  outlines  of  the  governmental  organization 
138 


AND  THE  PEOPLE 

and  with  the  broad  guaranties  of  the  Bill  of 
Rights,  though  they  must,  of  course,  contain 
proper  protection  against  the  abuse  of  the  leg- 
islative power,  which  is  undoubtedly  greater 
in  the  state  legislatures  than  in  the  compara- 
tively limited  range  of  the  federal  power. 

The  Deterioration  of  Legislation 

This  over-legislation  in  state  constitutions 
has  been  coincident  with,  and,  in  a  measure, 
doubtless,  the  result  of,  an  enormous  increase 
in  the  volume  of  state  legislation.  Some  States 
have  sought  to  limit  this  by  having  only  bien- 
nial sessions;  but,  none  the  less,  the  volume  of 
legislation  produced  at  these  sessions  exceeds 
some  fourteen  thousand  different  enactments, 
covering  in  print  some  twenty  to  twenty-five 
thousand  pages.  Professor  Reinsch-^  says  that 
the  political  and  social  service  which  in  our 
own  system  required  this  flood  of  enactment, 

21  American  Legislatures  and  Legislative  Methods, 
p.  300. 

139 


THE  JUDICIARY 

was,  in  the  principal  European  states,  per- 
formed by  a  few  hundred  statutes.  This  vol- 
ume of  legislation  is  to  some  extent  made  up 
of  private  and  local  legislation,  which  is 
enacted  sometimes  in  the  guise  of  general 
legislation  to  evade  the  constitutional  prohibi- 
tion of  special  legislation,  but  no  doubt  the 
general  legislation  is  largely  owing  to  the 
causes,  social  and  economic,  to  which  reference 
has  been  made. 

This  enormous  volume  of  legislation  has 
been  marked  by  a  progressive  deterioration  in 
the  character  of  the  legislation.  Until  a  com- 
paratively recent  period  there  has  been  no 
attempt  to  provide  for  the  careful  scientific 
preparation  of  bills  in  our  legislative  bodies, 
such  as  has  long  been  in  use  in  the  English 
parliament.  Constitutional  provisions,  re- 
quiring that  bills  should  be  considered  on  dif- 
ferent days  and  read  at  length  before  final 
passage,  are  frequently  evaded  through  the 
co-operation  of  the  members  and  the  clerk 
140 


AND  THE  PEOPLE 

under  "unanimous  consent"  so  that  the  record 
which  imports  verity  is  made  to  show  a  com- 
pliance on  its  face  with  the  constitutional 
requirement,  when  in  fact,  there  is  no  such 
compliance. 

All  this  is  mentioned  because  it  has  a  direct 
relation  to  the  position  of  the  judiciary  in  rela- 
tion to  legislation.  There  has  been  a  growing 
disposition  to  disregard  the  question  of  con- 
stitutionality in  legislation  on  the  ground  that 
such  matters  can  be  "straightened  out"  by  the 
courts.  On  this  question  of  the  changed 
position  of  the  courts  in  consequence  of  these 
legislative  tendencies,  I  quote  from  Professor 
Reinsch  :^^ 

"The  attitude  of  the  courts  toward  legisla- 
tion has  changed  very  much  in  the  course  of 
our  national  existence.  During  the  earlier 
decades  of  the  nineteenth  century  the  con- 
stitutionality of  statutes  was  rarely  disallowed, 
and  then  only  on  very  strong  grounds  and  by 
an  undivided  court.    A  liberal  benefit  of  doubt 

22  Same,  p.  314. 

141 


THE  JUDICIARY 

was  always  given  to  the  validity  of  the  law. 
But  since  the  universal  degeneration  of  the 
legislative  product  the  courts  have  become 
more  critical  and  have  begun  freely  to  use  their 
power  of  enforcing  the  constitutional  law  in 
opposition  to  statutes.  A  statement  such  as 
was  made  by  the  Supreme  Court  of  Pennsyl- 
vania in  1886,  would  have  been  thought  abso- 
lutely unwarranted  in  the  earlier  years.^^ 

"The  court  said,  'It  is  our  purpose  to  adhere 
rigidly  to  the  constitution,  that  the  people  may 
not  be  deprived  of  its  benefits.  It  ought  to  be 
unnecessary  for  the  court  to  make  this  declara- 
tion, but  it  is  proper  to  do  so  in  view  of  the 
amount  of  legislation  which  is  periodically 
placed  upon  the  statute  book  in  entire  dis- 
regard of  the  fundamental  rule.'  " 

Anomaly  of  Unreviewable  State  Construc- 
tion of  the  Federal  Constitution 

Comment  has  been  made  on  the  anomalous 
situation  developed  by  the  frequency  of  the 
appeal  for  federal  interference  against  state 

23  Morrison  v.  Bachert,  112  Pa.  State  322. 
See  also  Hensel,  The  Decadence  of  the  Legisla- 
tive Branch  of  our  State  Government,  Pennsylvania 
Bar  Association,  1898,  p.  105. 

142 


AND  THE  PEOPLE 

legislation  and  the  limitation  of  the  right  of 
review  of  state  decisions  by  tlie  supreme 
court  of  the  United  States  in  cases  where  tlie 
decision  of  the  state  court  is  against  the  fed- 
eral claim.  The  effect  of  this  limitation  is  to 
make  the  decision  of  the  State  courts  final 
where  they  decide  against  the  State  legisla- 
ture in  favor  of  the  federal  claim  as  violative 
of  the  due  process  of  law  and  the  equal  pro- 
tection of  the  laws.  There  have  been  several 
notable  decisions  of  this  class,  where  state 
courts  have  rendered  decisions  that  acts  of  the 
state  legislature  are  void  as  denying  due  pro- 
cess of  law  or  the  equal  protection  of  the  laws, 
and  such  decisions  have  been  final,  as  they 
would  be,  of  course,  as  to  the  application  of 
the  State  constitution  and  also  as  to  the  Fed- 
eral constitution,  because  the  Federal  claim  is 
sustained  and  not  denied.  Thus,  in  the  state 
of  Missouri,  two  amendments  to  the  state 
constitution  have  in  recent  years  been  adjudged 
violative  of  the  equal  protection  of  the  laws 
143 


THE  JUDICIARY 

guaranteed  by  the  federal  constitution  ;-*  and 
in  such  cases  the  decisions  were  solely  on  the 
ground  of  the  federal  claim  and  were  final 
because  the  federal  claim  was  sustained. 

This  anomaly,  however,  when  analyzed,  ap- 
plies also  to  the  federal  court  enforcing  its 
construction  of  the  state  guaranty  of  due 
process  of  law  or  equal  protection  of  the  laws. 
These  anomalies  really  grow  out  of  the  com- 
plexity of  our  system  of  government  where- 
under  these  fundamental  guaranties  of  indi- 
vidual right  are  secured  both  by  the  federal 
and  state  constitutions.  The  demand  for  the 
extension  of  this  right  of  review  of  the  su- 
preme court  to  all  cases  where  the  federal 
claim  is  asserted  in  the  state  court  really 
comes  from  those  who  have  complained  of 
what  they  deem  a  narrow  construction  by  the 
state  courts  and  believe  that  legislation  urged 
by  certain  social  reformers  would  meet  with 

24  Russell  V.  Croy,  164  Mo.  69;  and  State  ex  rel. 
Johnson  v.  C.  B.  &  Q.  R.  R.  Co.,  195  Mo.  228. 

144 


AND  THE  PEOPLE 

more  favorable  treatment  in  the  supreme  court 
of  the  United  States  than  in  the  state  courts. 

More  Liberal  Construction  by  United  States 
Supreme  Court  of  Scope  of  Police  Power 

Without  considering  the  merits  of  these 
several  cases,  this  much  is  clear,  that  the 
supreme  court  of  the  United  States  has 
tended  far  more  to  a  broad  and  liberal  con- 
struction of  the  constitutional  guaranties  in 
cases  involving  the  exercise  of  the  police  power 
than  have  some  of  the  state  courts;  and  with 
comparatively  rare  exceptions  such  state  stat- 
utes have  been  sustained  as  not  violative  of  the 
federal  constitution. 

In  a  notable  case,"^  wherein  the  supreme 
court  sustained  the  validity  of  a  statute  of  the 
state  of  Utah,  limiting  employment  in  under- 
ground mines  to  eight  hours  a  day,  it  impres- 
sively reviewed  important  legal  reforms  ef- 
fected by  statute  during  the  nineteenth  century, 

25  Holden  v.  Hardy,  169  U.  S.  366. 
145 


THE  JUDICIARY 

such  as  changing  the  ancient  tenures  of  real 
estate,  the  emancipation  of  married  women, 
and  the  Hke,  and  emphasized  the  progressive 
character  of  the  law,  and  added : 

The  Supreme  Court  on  Progressive  Charac- 
ter of  Constitutional  Law 

"They  are  mentioned  only  for  the  purpose 
of  calling  attention  to  the  probability  that  other 
changes  of  no  less  importance  may  be  made 
in  the  future,  and  that  while  the  cardinal  prin- 
ciples of  justice  are  immutable,  the  methods 
by  which  justice  is  administered  are  subject 
to  constant  fluctuation,  and  that  the  constitu- 
tion of  the  United  States,  which  is  necessarily 
and  to  a  large  extent  inflexible  and  exceedingly 
difficult  of  amendment,  should  not  be  so  con- 
strued as  to  deprive  the  states  of  the  power 
to  so  amend  their  laws  as  to  make  them  con- 
form to  the  wishes  of  the  citizens  as  they  may 
deem  best  for  the  public  welfare  without  bring- 
ing them  into  conflict  with  the  supreme  law  of 
the  land. 

"Of  course,  it  is  impossible  to  forecast  the 
character  or  extent  of  these  changes,  but  in 
view  of  the  fact  that,  from  the  day  Magna 

146 


AND  THE  PEOPLE 

Charta  was  signed  to  the  present  moment, 
amendments  to  the  structure  of  the  law  have 
been  made  with  increasing  frequency,  it  is 
impossible  to  suppose  that  they  will  not  con- 
tinue, and  the  law  be  forced  to  adapt  itself  to 
new  conditions  of  society,  and  particularly  to 
the  new  relations  between  employers  and 
employees,  as  they  arise." 


The  United  States  Supreme  Court  and  State 
Courts  Contrasted  as  to  Annulling  Leg- 
islation 

Reference  has  already  been  made  to  the 
contrast  between  the  comparative  brevity  of 
the  federal  constitution,  stating  in  broad, 
comprehensive  terms  the  great  outlines  of  the 
powers  of  government,  and  the  detailed  re- 
strictions upon  legislative  power  contained  in 
the  later  state  constitutions.  Thus  the 
supreme  court  of  the  United  States,  during 
the  one  hundred  and  twenty  years  of  its  exist- 
ence, has  declared  void  only  some  twenty-five 
acts  of  congress,  while  in  several  of  our 
147 


THE  JUDICIARY 

States  the  number  of  legislative  acts  declared 
void  by  the  state  courts  has  been  many  times 
that  number.  Thus,  in  the  state  of  Missouri, 
which  is  fairly  illustrative  of  the  modern 
restrictive  constitutions,  since  the  adoption  of 
this  constitution,  the  supreme  court  of  the  state 
has  declared  void  some  one  hundred  and  thirty 
legislative  acts  or  municipal  ordinances,  and 
this  including  only  eighteen  biennial  legisla- 
tive sessions.  On  the  other  hand,  the  supreme 
court  of  the  United  States  in  the  one  hundred 
and  tw^enty  years  of  its  existence,  in  the  exer- 
cise of  what  may  be  called  its  distinctively 
federal  jurisdiction  as  well  as  in  its  enlarged 
jurisdiction  under  the  fourteenth  amendment 
since  1868,  has  annulled  some  two  hundred  and 
twenty  state  laws.  But  this  number  is  small 
when  compared  with  the  volume  of  cases 
which  are  crowded  upon  the  court,  particu- 
larly in  late  years,  in  which  the  validity  of 
state  legislation  is  attacked.  The  greater 
number  of  these  cases  are  those  in  which  the 
148 


AND  THE  PEOPLE 

supreme  court  has  exercised  distinctively 
federal  jurisdiction;  that  is,  declared  void 
state  acts  which  interfere  with  interstate  com- 
merce, or  impair  the  obligation  of  contracts. 
The  cases  in  which  it  has  annulled  legislation 
on  the  ground  of  the  want  of  due  process  of 
law,  or  the  equal  protection  of  the  laws,  have 
been  very  few  indeed ;  though,  as  before 
stated,  the  cases  in  which  such  relief  has  been 
sought  are  very  great  in  number. 

It  is  clear,  therefore,  that  this  exercise  of 
the  judicial  power  has  been  far  more  frequent 
in  the  states  than  in  the  federal  courts.  While 
this  is  no  doubt  in  great  part  due  to  the  con- 
trast already  noted  between  the  federal  and 
the  later  state  constitutions,  it  is  also  true 
that  the  federal  judges,  particularly  in  the 
supreme  court,  have  been  more  conservative 
and  cautious  in  the  exercise  of  this  power  than 
have  some,  at  least,  of  the  judges  of  the  state 
courts. 


149 


THE  JUDICIARY 

The  Power  over  Legislation  Strictly  a  Judi- 
cial Power 

As  already  observed,  it  is  a  unanimously 
recognized  doctrine  that  the  power  of  the 
judiciary  in  determining  the  validity  of  legis- 
lation is  strictly  a  judicial  power.  The  court 
cannot  consider  the  wisdom  or  policy  of  legis- 
lation, nor  will  it  consider  political  as  dis- 
tinguished from  strictly  judicial  questions. 
The  power,  says  Professor  Thayer,  must  be 
so  exercised  by  the  court  as  not  to  deprive 
any  department  of  any  of  its  proper  power, 
or  to  limit  it  in  the  proper  range  of  its  dis- 
cretion.^*^ A  power  so  momentous  as  it  is, 
must  be  exercised,  as  the  courts  have  always 
recognized,  with  caution,  and  in  the  language 
of  Justice  Marshall,  the  courts  must  never  for- 
get that  it  is  the  constitution  they  are  ex- 
pounding. 

An  act  of  the  legislature,  therefore,  is  not 
to  be  declared  void  unless  the  violation  of  the 

-•^  Essays  on  Constitutional  Law,  p.  9. 
150 


AND  THE  PEOPLE 

constitution  is  so  manifest  as  to  leave  no  room 
for  reasonable  doubt. 

It  is  an  anomaly,  therefore,  and  in  the  popu- 
lar mind  dill'icult  to  reconcile  with  this  prin- 
ciple that  legislative  acts  are  not  to  be  declared 
void  in  any  case  of  reasonable  doubt,  that 
judges,  nevertheless,  declare  acts  void,  when 
the  dissent  in  their  own  number,  often  pro- 
nounced in  very  vigorous  terms,  shows  that 
the  question  was  not  free  from  doubt  in  the 
minds  of  the  individual  judges.  This  maxim 
seems  to  be  construed  in  such  cases  by  the 
majority,  that  is,  by  the  judges  concurring  in 
the  opinion  declaring  legislation  void,  as  mean- 
ing that  their  own  individual  minds  should  be 
free  from  doubt. 

The  public  seem  to  find  it  difficult  to  appre- 
ciate this  distinction  and  we  have  proposals 
both  in  the  legislatures  of  the  states,  and  in 
the  congress  of  the  United  States  to  limit 
the  power  of  the  judiciary  by  requiring  an 
unanimous  court  or  a  definite  number  of 
151 


THE  JUDICIARY 

the  judges  to  concur  in  declaring  a  statute 
void.  The  people  of  Ohio  have  recently 
adopted  a  constitutional  amendment  requiring 
that  at  least  five  of  the  six  judges  of  the 
supreme  court  must  concur  in  declaring  an 
act  of  the  legislation  void  as  violative  of  the 
constitution. 

Practical  Operation  of  Judicial  Power  Illus- 
trated by  Income  Tax  Amendment 

We  have  had  an  impressive  illustration  in 
this  country  of  the  practical  operation  of  this 
judicial  power  with  reference  to  the  admit- 
tedly doubtful  construction  of  the  grant  of  the 
taxing  power  of  congress.  It  was  held  by  the 
supreme  court  in  1895,  in  the  Income  Tax 
cases,-^  by  a  divided  court,  that  a  tax  upon 
incomes  was  a  direct  tax,  required  by  the 
constitution  to  be  apportioned  among  the 
states.  This  opinion  was  rendered  in  a  suit 
brought  by  an  interested  party,  and  was  uni- 

27  157  U.  S.  429. 

153 


AND  THE  PEOPLE 

versally  acquiesced  in  as  annulling  the  act  of 
congress  though  there  was  a  wide  difference 
in  professional  opinion  as  to  the  court's  ruling. 
Mr.  Lowell  has  wisely  said  that  our  constitu- 
tions obstruct  the  whim,  but  not  the  zvill  of 
the  people.  The  sixteenth  amendment  to  the 
constitution  has  been  recently  ratified  by  the 
necessary  number  of  the  states  expressly  to 
meet  the  difficulty  caused  by  this  decision,  so 
that  now  the  power  which  the  popular  will 
desired  may  be  lawfully  exercised. 

The  fact  that  two  amendments  to  the  federal 
constitution  have  been  ratified  by  the  states 
within  the  past  year  clearly  shows  that,  when 
the  people  are  satisfied  that  change  is  de- 
manded, there  is  no  difficulty  in  making  the 
popular  will  effective. 


153 


Ill 


Foot 
Page     Note  Citations 

101  1     40th  American  Law  Review,  p.  553. 

102  2     Smyth  v.  Ames,  169  U.  S.  528. 

104  3     /;;  re  London  &  Westminster  Bank,  2  CI. 

&  F.  191. 

105  4    33  Conn.  586. 

107        5     Thayer's   Constitutional   Cases,   Vol.    1,   p. 
152. 
6     Maine's  Popular  Government,  p.  223. 

111  7     McCullough  V.  Maryland,  4  Wheaton  316. 

112  8    Juilliard  v.   Greenman  and  Legal   Tender 

Cases,  110  U.  S.  421. 
116        9     Sec.  709  R.  S.  Am.  Stat.  468. 

119  10     Slaughter  House  Case,  16  Wallace  36. 

120  11     United  States  v.  Cruikshank,  92  U.  S.  542. 
12     Santa  Clara  Co.   v.   Southern   Pac.   R.   R. 

Co.,  118  U.  S.  394;  Pembina  Mining  Co. 
V.  Pennsylvania,  125  U.  S.  181;  Minne- 
apolis &  St.  Louis  R.  R.  Co.  V.  Beck- 
with,  129  U.  S.  26. 

122  13     Raymond    v.    Chicago    Traction    Co.,    207 

U.  S.  35. 

123  14     Davidson  v.  New  Orleans,  96  U.  S.  103. 
127       15     Carroll    on    the    P'ourteenth    Amendment 

and  the  States,  ch.  VII. 
129       16     Carroll    on    the    Fourteenth    Amendment 

and  the  States,  p.   106. 
131       17     Carroll    on    Fourteenth    Amendment    and 

the  States,  ch.  VII. 
133      18    McCullough  v.  Maryland,  4  Wheaton  316. 

154 


Page 

Foot 
Note 

134 

19 

136 

20 

AND  THE  PEOPLE 

Citations 

III  re  Debs,  158  U.  S.  564. 

Henry  Hitchcock  on  American  State  Con- 
stitutions, 1887. 
139      21     Reinsch's  American  Legislatures  and  Leg- 
islative Methods,  p.  300. 

141  22     Same,  p.  314. 

142  2Z    Morrison  v.  Bachert,  112  Pa.  State  322. 

See  also  Hensel,  The  Decadence  of  the 
Legislative  Branch  of  our  State  Govern- 
ment, Pennsylvania  Bar  Association, 
1898,  p.  105. 

144  24    Russell    v.    Croy,    164   Mo.  69;    and    State 

ex  rel.  Johnson  v.  C.  B.  &  Q.  R.  R.  Co., 
165  Mo.  228. 

145  25     Holden  v.  Hardy,  169  U.  S.  366. 

150      26    Thayer's  Essays  on  Constitutional  Law,  p. 

9. 
152      27     157  U.  S.  429. 


155 


CONTENTS 


IV 

PAGE 

Progressive     Democratization     of     State 

Courts  ......  159 

Mr.  Bryce  on  Our  Elective  Judiciary       .  162 
Danger  of  the  Elective  System         .          .  162 
The  Purpose  of  Constitutional  Restraints  167  • 
President  Hadley  on  the  Judicial  Power  .  168 
De  Tocqueville  on  Restraints  of  Consti- 
tution      169  ^ 

The  Progressive  Development  of  Private 

Law 170 

Modern     Impatience     of     Constitutional 

Restraints 171 

The  Recall  of  Decisions          .                   .  172 

Inadequacy  of  Recall  of  State  Decisions  .  175 
Fundamental     Objection     to     Recall     of 

Decisions        .....  177 
The  Recall  of  Judges     .         .          .          .179 
157 


THE  JUDICIARY 

PAGE 

The  Existing  Recall  Through  Short  Elec- 
tive Terms     .....   182 

The    Judiciary,    the    Weakest    of    Govern- 
mental Powers         ....   184    ' 

The  Controlling  Power  of  Public  Opinion  188 

The  Power  of  Amending  Constitutions  .   189 

State  Constitutions  Should  be  Less  Re- 
strictive .....    191 

The  Legislative  Product  Should  be  Im- 
proved ......   191 

Complaints    as    to    the     Personality     of 

Judges 194   * 

The    Efficiency   of   the   Remedy   by    Im- 
peachment     .....   198 

Removal  of  Judges  by  Address       .  .   200 

The  Rightful  and  Effective  Remedies       .   205 


158 


IV 

The  Recall  of  Dkcisions  and  of  Judges 

In  the  last  lecture  we  considered  the  historic 
development  of  the  judicial  power  in  the 
United  States,  the  establishment  and  enforce- 
ment in  botli  the  federal  and  state  Courts  of 
the  judicial  power,  when  duly  invoked  in 
litigation  with  respect  to  legislation,  the  ex- 
pansion of  the  federal  judicial  power  over 
state  legislation  by  the  fourteenth  amend- 
ment, and  the  results  of  excessive  restraints 
upon  state  legislation  under  the  state  consti- 
tution. 

Progressive  Democratization  of  State  Courts 

An  important  fact  in  the  judicial  history  of 
the  country  is  the  progressive  democrati- 
zation of  the  courts ;  that  is,  of  the  state 
courts.  The  federal  judges  are  appointed,  as 
they  have  been  from  the  beginning — the  con- 
stitution providing  that  the  judges  of  the 
159 


THE  JUDICIARY 

supreme  and  inferior  courts  shall  hold  their 
offices  during  good  behavior.  This  was 
adopted  from  England.  At  the  time  of  the 
adoption  of  the  constitution  in  1789  none  of 
the  states  chose  their  judges  by  popular  elec- 
tion, and  in  most  of  them  their  tenure  was  for 
life,  or  on  good  behavior.  During  the  Jack- 
sonian  era  in  the  last  century,  in  the  thirties, 
the  so-called  democratic  movement  spread  over 
the  country,  substituting  popular  election  for 
appointment,  until  now,  outside  of  the  six  New 
England  states,  there  are  but  five  states  in 
which  the  judges  of  the  supreme  court  are 
selected  otherwise  than  by  popular  election, 
that  is,  by  either  appointment  or  election  by 
the  legislature.  One  of  these  excepted  states, 
Mississippi,  it  is  interesting  to  know,  was  the 
first  one  to  adopt  the  elective  system,  which, 
in  its  constitution  adopted  after  the  recon- 
struction period,  it  abandoned  and  adopted  the 
appointive  features ;  that  is,  appointment  by 
the  governor  with  confirmation  by  the  state 
160 


AND  THE  PEOPLE 

senate.  The  terms  of  office  vary  from  a  life 
tenure  in  Massachusetts,  New  Hampshire  and 
Rhode  Island,  and  from  periods  ranging  from 
twenty-one  years  in  Pennsylvania  to  two  years 
in  Vermont.  The  usual  terms  seem  to  be  six 
years  in  cases  of  judges  of  the  supreme  court 
and  four  years  for  judges  of  the  trial  courts, 
and  two  years  for  justices  of  the  peace.-^ 

This  democratization  of  the  courts  extended 
far  beyond  the  substitution  of  an  elective  for 
an  appointive  judiciary.  It  was  distinctly 
based  upon  the  distrust  of  the  judicial  power. 
Although  the  ancient  forms  of  pleading  have 
been  abolished  in  nearly  all  the  states,  the  leg- 
islation of  the  states,  as  a  rule,  undertakes  to 
provide  the  details  of  judicial  procedure,  and 
in  many  the  trial  judges  are  compelled  to  give 
their  instructions  to  the  jury  in  writing,  and  are 
forbidden  to  comment  upon  the  testimony.  In 
some  of  the  states,  the  appellate  judges  are  for- 
bidden, even  by  the  constitutions,  to  exercise 

^  Stimson's  Federal  and  State  Qjnstitutions,  sec. 
654. 

161 


THE  JUDICIARY 

any  discretion  as  to  what  opinions  should  be 
given  in  writing,  and  therefore  must  give  them 
all  in  writing,  whether  important  or  unimpor- 
tant, whether  valuable  as  precedents  or  not, 
and  are  compelled  to  set  out  in  their  opinions  a 
full  statement  of  the  facts  and  the  reasons  for 
their  conclusions. 

Mr.  Bryce  on  our  Elective  Judiciary 

Mr.  Bryce,  in  his  recent  revision  of  his 
commentaries  upon  our  institutions,  says  that 
the  American  bench  has  suffered  from  the  all- 
prevalent  system  of  popular  election  and  from 
the  scanty  remuneration  afforded.  In  the 
states  which  have  adopted  the  so-called  sys- 
tem of  primary  elections  for  nominations, 
candidates  for  the  bench  are  compelled  to 
enter  the  lists  as  contestants  for  nomination 
and  then  for  election. 

Danger  of  the  Elective  System 

It  can  hardly  be  a  matter  of  surprise  that 
the  bench  should  suffer  from  such  conditions. 
162 


AND  THE  PEOPLE 

It  is  not  my  purpose  to  discuss  the  merits  and 
demerits  of  the  elective  and  appointive  sys- 
tems. This  much  is  clear,  however,  that  the 
selection  of  judges  in  a  country  of  written 
constitutions,  where  the  courage  and  inde- 
pendence of  the  judiciary  are  essential  to  pro- 
vide the  public  security,  requires  the  supreme 
exercise  of  intelligence  and  self-restraint  on 
the  part  of  the  people.  It  is  true  that  the 
judges  selected  by  popular  vote  for  the  highest 
and  other  state  courts  in  the  states  of  the 
United  States  have  often  ranked  high  in 
ability  and  character,  and  in  many  cases  com- 
pare well  with  those  selected  by  the  appointive 
system  in  the  federal  courts.  These  facts 
bear  eloquent  testimony  to  the  high  and  dis- 
criminating intelligence  of  the  American 
people  in  the  performance  of  this  supreme 
duty  of  citizenship  in  the  selection  of  their 
judiciary. 

It  is  also  true,  however,  that  this  forcing 
of  our  judges  to  seek  political  nominations  is 
163 


THE  JUDICIARY 

in  itself  a  danger  which  requires  the  develop- 
ment of  a  watchful  pubHc  opinion  and  the 
earnest  efforts  of  the  bar. 

Attention  has  been  called  in  a  preceding 
lecture  to  the  tremendous  power  of  public 
opinion  in  England  in  the  control  of  the  admin- 
istration of  justice,  as  shown  in  the  anomalous 
arrangement  whereunder  the  appellate  juris- 
diction of  the  House  of  Lords  is  administered 
by  a  selected  number  of  trained  judges.  Such 
a  development  of  public  opinion  seems  extraor- 
dinary to  us,  though  we  have  an  impressive 
example  of  the  force  of  changed  public  opinion 
in  the  election  of  our  President  and  Vice- 
President  by  the  electoral  college,  whose 
members  were  expected  to  exercise  an  impor- 
tant discretionary  duty,  but  for  nearly  a  cen- 
tury have  been  mere  automatons  in  expressing 
the  partisan  choice.  We  have  had,  however, 
instances  in  this  country  where  public  opinion 
has  been  efifective  in  selecting  and  continuing 
highly  qualified  judges  in  popular  elections. 
164 


AND  THE  PEOPLE 

Thus,  in  one  state  to  which  my  attention  has 
been  called,  I  am  informed  that  political  nomi- 
nations for  the  bench  are  unknown.  But  such 
instances,  I  am  forced  to  believe,  are  excep- 
tional ;  and,  despite  the  efforts  of  many  mem- 
bers of  the  bar,  judges  are  forced  to  seek 
partisan  nominations  at  political  primaries  or 
party  conventions,  and  to  take  their  chances 
in  the  partisan  contests  at  the  polls.  Those 
of  us  who  have  seen  such  contests  can  testify 
that  eminent  service  counts  for  little  when  the 
election  of  judges  is  determined  by  the  political 
conditions  controlling  the  election. 

The  substitution  in  many  of  our  states  of 
nominations  by  primary  elections  in  place  of 
representative  conventions,  under  the  delusion 
that  the  power  of  those  who  give  their  time 
to  politics  can  be  eliminated  by  multiplying 
elections,  has  had  the  effect  of  accentuating 
the  evil  of  our  elective  judiciary.  Thus,  the 
candidate  is  subjected  to  the  annoyance  and 
expense  of  two  campaigns:  first,  for  the 
165 


THE  JUDICIARY 

primary  nomination,  and  then  for  the  election. 
These  deplorable  conditions,  it  is  gratifying  to 
note,  are  arousing  public  attention ;  and  no 
doubt  public  opinion  favors  taking  judicial 
elections  out  of  partisan  politics,  and  out  of 
the  control  of  politicians.  In  attempting  to 
secure  this  most  desirable  result,  however,  it 
should  be  remembered  that  a  bi-partisan  divi- 
sion of  offices  is  very  different  from  true  non- 
partisanship  in  qualification  for  judicial  office, 
though  it  may  be  an  improvement  on  partisan 
nominations  and  elections. 

It  is  obvious  that  election  under  these  con- 
ditions directly  impairs  the  independence  which 
is  essential  to  the  office  of  a  judge.  These 
conditions  also  have  a  bearing  upon  the  ques- 
tions of  reforms  in  judicial  procedure;  but 
this  must  be  considered  later. 

As  this  is  a  time  of  general  unrest,  in  which 
all  human  institutions  are  subjected  to  criti- 
cism, the  judiciary  can  not  expect  to  escape. 
Not  only  is  the  administration  of  justice  com- 
166 


AND  THE  PEOPLE 

plained  of,  as  to  the  procedure  and  delays  of 
the  courts — and  that  subject  must  be  reserved 
for  another  lecture — but  there  is  a  further 
attack  upon  the  judicial  power  itself,  in  so  far 
as  it  delays  or  obstructs  the  popular  will  in 
its  demand  for  social  reforms. 

The  Purpose  of  Constitutional  Restraints 

It  must  be  conceded  that  the  effect  of  our 
rigid  written  constitutions  is  to  obstruct,  that 
is  delay,  all  reforms  through  legislation. 
Their  purpose  in  the  final  analysis  was  to 
secure  the  sober  second  thought  of  all  the 
people  and  to  insure  that  reforms  should  be 
enacted  with  caution  and  deliberation.  These 
constitutional  restraints  were  also  intended  to 
protect  the  minority,  even  the  unpopular  minor- 
ity, against  the  majority,  or  at  least  to  secure 
that  no  rights  should  be  invaded,  even  for  the 
public  good,  except  in  conformity  to  the  con- 
stitutional limitations  established  for  the  gen- 
eral and  permanent  welfare  of  all  the  people. 
167 


THE  JUDICIARY 

These  restraints,  in  the  words  of  Burke,  upon 
men,  are  to  be  deemed  their  rights. 

It  is  true  that  in  a  sovereign  parhament  Hke 
that  of  England,  legislation  may  be  enacted 
without  reference  to  any  restraint  of  a  written 
constitution,  or  to  any  review  by  the  judicial 
power.  That  was  the  very  condition  that  the 
founders  of  our  government  sought  to  avoid. 
It  is  also  true  that  at  the  present  time  in  Eng- 
land, thoughtful  men  are  considering  the  great 
defect  of  their  form  of  government,  in  the 
absence  of  any  restraint  upon  the  legislative 
power.^  Mr.  Maine  terms  the  rule  of  our 
constitution,  denying  to  the  states  the  power 
to  make  any  laws  impairing  the  obligation  of 
contracts,  "the  bulwark  of  American  individ- 
ualism against  democratic  impatience  and 
socialistic  fantasy." 

President  Hadley  on  the  Judicial  Power 

This  fundamental  purpose  of  the  American 

2  Popular  Government,  ch.  4. 
168 


AND  THE  PEOPLE 

constitutional  system  in  insuring  the  sober 
second  thought  of  the  people  has  been  well 
stated  by  President  Hadley  of  this  University : 

"Legislature  and  executive  are  means  given 
to  allow  the  people  to  do  what  they  please 
under  certain  constitutional  forms.  The  judi- 
ciary is  a  means  given  to  prevent  the  people 
from  doing  what  they  please.  How  can  we 
explain  the  fact  that  these  judicial  restrictions 
are  of  the  \ery  essence  of  freedom?  I  answer, 
because  the  law  of  the  United  States  as  defined 
and  administered  by  its  courts,  represents  not 
only  restraint,  but  self-restraint;  and  the  kind 
of  self-restraint  which  the  nation  must  be  pre- 
pared to  exercise  if  it  hopes  permanently  to 
enjoy  the  advantages  of  political  freedom." 

De  Tocqueville  on  Restraints  of  Constitution 

That  thoughtful  French  philosopher,  De 
Tocqueville,  said  that  without  its  restraints 
the  constitution  would  be  a  dead  letter. 

While  there  is  a  complaint  of  the  judicial 
power  over  legislation,  and  we  hear  a  demand 
for  either  the  English  system  of  a  sovereign 
169 


THE  JUDICIARY 

parliament  or  that  of  the  continent  with  its 
administrative  law  and  weak  judiciary,  we  find 
little  or  no  complaint  of  what  may  be  termed 
the  substantive  law  between  man  and  man 
which  is  administered  by  our  courts. 

The   Progressive    Development    of    Private 
Law 

We  have  impressive  illustrations  of  the 
developing  power  of  our  jurisprudence  to  meet 
the  new  and  complex  conditions  of  a  progress- 
ing civilization.  The  development  of  our  law 
has  gone  on  apace,  not  only  with  legislation, 
but  with  the  notable  additions  made  to  the 
substantive  law  by  our  courts  as  cases  come 
before  them.  Thus,  the  power  to  regulate 
commerce,  granted  to  the  federal  government 
in  the  time  of  the  stage  coach  and  sailing 
vessel,  has  been  applied  through  successive 
developments  and  application  of  steam  and 
electricity  to  the  control  of  the  vast  details 
of  commercial  intercourse  of  the  present  day. 
170 


AND  THE  PEOPLE 

The  fundamental  principles  of  the  law  of  con- 
tract have  been  applied  to  the  modern  inter- 
course by  the  telegraph  and  telephone.  The 
common  law  of  the  innkeeper  is  applied  to 
our  great  modern  caravansaries,  the  law  of 
the  road  to  the  motorcycle  and  the  automobile, 
and  the  law  of  trespass  to  modern  air  ships. 

Modern    Impatience    of    Constitutional    Re- 
straints 

But  notwithstanding  all  this,  we  hear  on 
every  side  complaints  that  the  progress  of  the 
law  is  not  commensurate  with  the  wants  of 
modern  society.  We  are  told  that  the  judges 
are  controlled  by  precedents  of  past  ages  and 
that  our  laws  are  construed  without  regard 
to  the  modern  conditions.  This  complaint  is 
especially  voiced  with  reference  to  so-called 
social  legislation.  We  find  there  is  an  im- 
patience of  constitutional  restraints.  We  are 
not  now  dealing  with  the  complaints  of  the 
delays  and  imperfections  of  our  legal  pro- 
171 


THE  JUDICIARY 

cedure,  for  that  will  be  reserved  for  future 
consideration.  There  is  an  impatience  mani- 
fested over  the  restraint  imposed  by  our  con- 
stitutional system,  which  was  carefully  devised 
to  insure  the  sober  second  thought  of  the  peo- 
ple and  to  restrain  impulsive  and  inconsiderate 
action  of  any  kind.  We  therefore  have  specific 
objections  that  our  courts  are  not  discharging 
their  duty  in  relation  to  men  and  social  and 
industrial  justice  when  they  decide  cases 
involving  the  constitutionality  of  so-called 
social  legislation,  and  therefore  radical  reme- 
dies are  invoked,  such  as  the  recall  of  judicial 
decisions  and  the  recall  of  judges,  which 
deserve  careful  consideration  because  of  the 
prominence  of  some  of  their  advocates  and 
their   far-reaching  character. 

The  Recall  of  Decisions 

The  more  recent  current  discussion,  particu- 
larly in  relation  to  the  proposed  recall  of 
judicial  decisions,  has  centered  about  the  recent 

172 


AND  THE  PEOPLE 

decision  of  the  New  York  Court  of  Appeals, 
in  the  case  already  referred  to,^  wherein  the 
so-called  Workmen's  Compensation  Law  of 
that  State  was  held  violative  of  the  due  pro- 
cess of  law  of  both  the  State  and  Federal 
Constitutions.  This  decision  was  final,  l)Oth 
as  to  the  State  and  Federal  Constitutions,  as 
it  was  in  favor  and  not  against  the  Federal 
right  claimed  in  the  case.  This  statute,  which 
was  adjudged  void,  attempted  to  make  an 
employer  liable  to  pay  compensation  in  certain 
fixed  amounts  to  the  employee  or  to  his  sur- 
viving dependents  in  case  of  his  injury  or 
death  from  accident,  without  reference  to 
negligence ;  and  in  addition  to  this,  at  the 
election  of  the  employee,  the  employer's  com- 
mon law  liability  for  negligence  was  enforced. 
The  effect  of  the  statute  was  to  make  the 
employer,  when  negligent,  liable  in  such 
damages  as  a  jury  might  assess,  and  then  to 
superadd  the  liability  for  fixed  compensation 
3  Ives  V.  Railroad  Co.,  201  N.  Y.  271. 
173 


THE  JUDICIARY 

in  cases  where  he  was  in  no  way  at  fault.  The 
effect,  therefore,  in  the  judgment  of  the  court, 
was  to  place  the  burden  upon  the  employer 
without  any  compensatory  benefit.  The  court 
carefully  distinguished  the  cases  of  common 
carriers  where  the  public  safety  was  involved, 
but  held  that  the  act  applicable  to  all  employers 
was  violative  of  the  due  process  of  law 
guaranteed  in  both  the  state  and  federal  consti- 
tutions. 

It  was  as  a  result  of  this  decision  that  the 
proposed  recall  of  judicial  decisions  was  advo- 
cated. This  is  to  be  distinguished  from  the 
recall  of  judges,  which  will  be  considered 
later,  as  this  scheme  deals,  not  with  the  indi- 
vidual judge,  but  with  the  law  as  declared  by 
the  court.  Under  this  scheme,  it  is  not  every 
decision  which  is  to  be  recalled  by  popular 
vote,  but  only  special  classes  of  decisions,  and 
the  decision  itself  remains  in  force  as  to  the 
individual  litigants.  The  scheme  as  outlined 
by  its  distinguished  author,  an  ex-President 
174 


AND  THE  PEOPLE 

of  the  United  States,  is  this :  whenever  the 
highest  court  of  a  state  shall  have  declared 
unconstitutional  a  statute  of  the  state  passed 
under  the  police  power  of  the  state,  for  the 
supposed  benefit  or  health  or  welfare  or 
safety  of  a  portion  of  the  community,  and 
whenever  such  statute  has  been  held  by  the 
highest  court  of  the  state  to  be  unconstitu- 
tional because  interfering  with  the  life,  liberty 
or  property  clause  of  the  constitution  of  the 
state,  the  people  of  the  state  shall  have  the 
right  by  majority  vote  to  set  aside  the  decision 
of  the  court  declaring  the  statute  to  be  void, 
and  to  restore  the  authority  of  the  statute  by 
this  vote.  As  outlined  by  the  ex-President, 
this  did  not  extend  to  decisions  of  the  supreme 
court  of  the  United  States,  but  is  only  directed 
against  decisions  of  the  highest  court  of  a 
State. 

Inadequacy  of  Recall  of  State  Decisions 

An  obvious  difficulty  with  this  remedy  thus 
175 


THE  JUDICIARY 

limited  is  that  a  judgment  of  the  State  court 
that  a  legislative  act  was  violative  of  due  pro- 
cess of  law  would  declare  that  it  was  void 
both  under  the  state  and  the  federal  consti- 
tutions, and  under  existing  law  this  decision 
would  be  final  as  to  both.  The  vote  of  the 
state  electors  specifically  declaring  that  such 
a  statute  was  valid,  that  is,  not  violative  of  due 
process  of  law,  could  have  no  effect  upon  this 
violation  of  the  federal  guaranty.  It  seems 
that  the  advocates  of  this  measure  have  real- 
ized this,  as  during  the  present  session  of  con- 
gress an  amendment  to  the  constitution  is 
proposed  whereunder  decisions  of  the  supreme 
court  are  to  be  subject  to  a  national  recall, 
and  this  proposition  has  been  endorsed  by  some 
of  the  advocates  of  this  recall  of  judicial 
decisions. 

It   has   been  argued   that   this   remedy,   by 
direct  popular  determination  that  a  particu- 
lar act  is  within  the  police  power,  is  a  more 
conservative  method  than  the  amendment  to 
176 


AND  THE  PEOPLE 

the  constitution  to  accomplish  that  resuU.'* 
Thus  it  is  said  that  such  a  popular  vote  would 
only  authorize  specific  legislation,  and  there- 
fore would  be  more  conservative  than  a  con- 
stitutional amendment  couched  in  general 
terms.  It  is  also  claimed  that  constitutional 
amendments  can  not  be  drawn  empowering 
the  courts  adequately  to  deal  with  cases  of 
social  injustice,  which  will  not  also  be  so  com- 
prehensive as  to  include  cases  to  which  they 
were  not  intended  to  apply. 

Fundamental  Objection  to  Recall  of  Deci- 
sions 

This  difficulty,  however,  affords  no  reason 
for  adopting  the  remedy,  which,  as  President 
Taft  said,  would  result  in  the  suspension  or 
application  of  constitutional  guaranties  ac- 
cording to  the  popular  whim,  and  would 
destroy  all  forms  of  consistency  in  constitu- 

^  Ransom  on  Majority  Rule  and  the  Judiciary, 
p.  40. 

177 


THE  JUDICIARY 

tional  interpretation.  It  would  be  a  return 
to  the  judicial  determination  by  the  popular 
assembly  familiar  in  classic  history.  It  would 
substitute  the  vote  of  the  populace  for  the 
determination  and  judgment  of  the  court,  and 
would  be  in  effect  destructive  of  judicial 
power.  It  is  true  the  people  make  the  consti- 
tution and  have  the  power  to  amend  it,  but 
this  does  not  mean  that  they  should  have  the 
power  to  disregard  its  application,  or  that  we 
should  substitute  the  popular  judgment  upon 
specific  acts  of  legislation  in  place  of  relying 
upon  the  general  guaranties  of  private  right 
in  the  constitution.^ 

The  proposed  recall  of  judicial  decisions  is 
in  principle  more  objectionable  than  the  recall 
of  the  judge,  as  in  the  latter  case  the  people 
would  only  vote  upon  the  fitness  of  the  indi- 
vidual judge,  while  in  the  recall  of  decisions 

5  For  full  discussion  of  the  subject  of  the  recall 
of  judicial  decisions,  see  address  of  Henry  W.  Taft 
at  the  New  York  Bar  Association,  January,  1913. 

178 


AND  THE  PEOPLE 

the  exercise  by  the  people  of  the  essentially 
judicial  function  is  involved.  This  novel  sug- 
gestion of  the  recall  of  judicial  decisions 
doubtless  springs  from  the  impatience  over  the 
delay  in  securing  reforms  growing  out  of  the 
decisions  of  the  courts  that  such  enactments 
are  violative  of  Federal  and  State  constitu- 
tional guarantees  of  property  rights.  Such  a 
remedy  misconceives  the  fundamental  theory 
of  our  political  system  with  its  distribution  of 
the  powers  of  government. 

The  Recall  of  Judges 

A  more  serious  attack  upon  the  courts  is 
that  of  the  judicial  recall,  as  this  has  been 
adopted  in  the  constitutions  of  several  of  the 
states,  that  is,  in  the  States  of  Oregon,  Cali- 
fornia, Colorado  and  Arizona.  In  the  latter 
state,  President  Taft  vetoed  the  statehood 
bill  because  of  the  inclusion  of  this  judicial 
recall  clause,  and  it  was  thereupon  omitted.^ 

6  Veto  Message  of  August  15,  1911. 
179 


THE  JUDICIARY 

After  the  state's  admission  to  the  Union,  it 
was,  of  course,  sovereign  with  respect  to  its 
own  constitution,  and  it  thereupon  readopted 
the  same  clause.  This  judicial  recall  does  not 
seem  to  have  been  aimed  in  the  first  instance 
at  the  judges,  but  it  has  been  adopted  as  a 
panacea  applicable  to  all  officials,  and  judicial 
offices  have  been  included  in  it  in  the  states 
named.  The  effect  of  the  recall  is  that  a  cer- 
tain numbers  of  voters  can  demand  that  the 
officials  shall  submit  to  a  re-election.  The 
state  of  Oregon  provides  that  after  one 
attempt  to  recall,  the  officeholder  shall  not 
be  submitted  to  another  during  his  term  of 
office,  unless  the  second  petitioner  shall  pay 
into  the  public  treasury  the  entire  amount  of 
the  expenses  of  the  first  attempt.  California 
provides  that  the  state  shall  reimburse  the 
officeholder,  whose  removal  is  unsuccessfully 
sought,  his  entire  expenses.  This  subject  of 
the  recall  of  judges,  as  well  as  that  of  the 
recall  of  judicial  decisions,  was  very  exhaus- 
180 


AND  THE  PEOPLE 

tively  discussed  by  the  Hon.  William  B. 
Hornblower  of  New  York  in  his  address  to 
the  graduating  class  of  this  law  school  in  June, 
1912.'  I  concur  in  his  condemnation  of  the 
scheme,  not  only  in  its  effect  upon  the  char- 
acter of  the  judges  and  upon  the  rights  of  the 
individual  litigant,  but  upon  the  principles  of 
the  law  and  the  rights  of  the  public,  and  with 
his  statement  that  the  tendency  would  be  to 
substitute  for  the  fearless  and  independent 
judge,  a  spineless,  flabby,  cowardly  judge,  a 
reed  shaken  by  every  wind. 

The  American  Bar  Association  has  firmly 
condemned  this  scheme.^  It  may  be  true  that 
the  public  would  be  cautious  and  discrimi- 
nating in  the  exercise  of  this  power.  But  the 
fatal  objection  to  it  is,  not  that  the  people 
would  necessarily  be  unwise  in  its  exercise, 
but  because   its  existence,  whether  exercised 

"  See  Yale  Law  Journal,  Vol.  22,  No.  L 
8  See  Annual  Report  of  American  Bar  Association 
of  1912. 

181 


THE  JUDICIARY 

or  not,  would  be  fatal  to  the  independence  of 
our  judges. 

The  Existing  Recall  Through  Short  Elective 
Terms 

In  considering  this  subject  of  recall,  how- 
ever, we  must  not  overlook  the  fact  that,  with 
our  short  terms,  we  now  have  another  form 
of  recall,  which  is  almost  as  effective  in  de- 
stroying independence  and  efificiency  of  our 
judiciary.  Mr.  Arthur  J.  Eddy,  in  an  address 
before  the  Chicago  Bar  Association,^  says  that 
under  this  the  judge  is  recalled  by  law,  and 
put  off  the  bench  at  the  very  height  of  his 
usefulness,  and  subjected  to  the  worry,  uncer- 
tainty and  expense  of  a  re-election  when 
nobody  wants  an  election,  and  the  election, 
nine  times  out  of  ten,  will  turn,  not  upon  the 
record  of  the  judge,  but  upon  the  political 
conditions    of    the    hour.      He    recommends, 

^  West  Publishing  Co.  Docket  for  November,  1912. 
183 


AND  THE  PEOPLE 

therefore,  and  with  force,  that  if  judges  were 
elected  for  Hfe,  and  thus  secured  against  the 
existing  form  of  recall,  that  then  there  might 
well  be  a  recall,  with  proper  limitations,  on  this 
question  of  his  continuing  fitness  for  the  office. 

In  this  connection  it  is  interesting  to  note 
that  bills  have  been  introduced  into  the  legis- 
latures of  several  states  providing  for  such 
a  judicial  recall ;  that  is,  for  electing  circuit 
and  supreme  court  justices  at  special  judicial 
elections  on  strictly  non-partisan  ballot,  to  hold 
office  for  Hfe  unless  removed  for  cause  by 
popular  vote. 

This  modification  of  the  principle  of  recall, 
by  associating  with  it  the  election  of  judges  for 
life,  has  been  endorsed  by  ex-President  Roose- 
velt in  a  recent  address.  It  is  certainly  far 
preferable  to  our  present  system  of  electing 
judges  for  short  terms  and  subjecting  them  to 
recall  at  each  recurring  election.  Even  as  thus 
qualified,  however,  the  recall  as  applied  to 
judges  is  subject  to  the  very  grave  objection 
183 


THE  JUDICIARY 

that  it  impairs  the  independence  of  the  judges 
in  compelHng  them  to  submit,  even  at  stated 
intervals,  their  judicial  record  to  popular  judg- 
ment at  the  polls.  Far  better  would  it  be  to 
elect  our  judges  for  life,  or  for  long  terms, 
with  the  power  of  removal  by  address  by  the 
legislatures  under  provisions  now  existing  in 
some  of  our  state  constitutions,  and  also  in 
the  English  parliament.  It  certainly  is  to  be 
hoped  that  the  discussion  of  the  recall  will 
take  into  consideration  the  evils  of  the  exist- 
ing recall  in  our  system  of  electing  judges  for 
short  terms  by  popular  election. 

The  Judiciary  the  Weakest  of  Governmental 
Powers 

It  was  well  stated  by  Mr.  Hamilton  that  the 
judiciary  is  the  weakest  of  the  powers  of  gov- 
ernment, and  it  is  a  mistake  to  suppose  that 
the  independence  of  the  judiciary  supposes 
superiority  of  the  judiciary  over  the  legislative 
184 


AND  THE  PEOPLE 

power.  It  only  supposes  that  the  power  of  the 
people  is  superior  to  both,  and  where  the  will 
of  the  legislature  declared  in  its  statutes  stands 
in  opposition  to  that  of  the  people  declared 
in  their  constitution,  the  judges  ought  to  be 
governed  by  the  latter  rather  than  the  former. 
The  power  of  the  people  through  the  legis- 
lative will  over  the  judiciary  was  forcibly 
illustrated  in  the  reconstruction  period,  when 
the  supreme  court  of  the  United  States  was 
prevented  by  an  act  of  congress  from  pass- 
ing on  the  validity  of  the  reconstruction 
acts,  which  had  been  enacted  at  the  close  of 
the  civil  war,  in  a  case  which  was  actually 
pending.  A  Mississippi  editor,  having  been 
arrested  by  military  order  for  publishing  an 
article  speaking  of  the  policy  of  the  govern- 
ment, was  held  for  trial  before  a  military 
commission.  His  application  for  habeas 
corpus  having  been  denied  by  the  circuit 
court,  he  appealed  to  the  supreme  court  of 
the  United  States.  That  court  held  that  it  had 
185 


THE  JUDICIARY 

jurisdiction  and  heard  the  case  on  its  merits. 
Congress,  fearing  that  the  court  would  decide 
that  the  reconstruction  acts  were  unconstitu- 
tional, thereupon  pass  an  act  repealing  the 
right  of  appeal  in  such  cases  from  the  circuit 
court.  As  Governor  Baldwin  says  in  his 
American  Judiciary,^^  the  purpose  of  this  was 
obvious,  but  none  the  less  effective ;  and  the 
court,  without  deciding  the  case,  dismissed  it 
for  want  of  jurisdiction.^^ 

In  this  case  the  court  said  that  it  was  given 
appellate  jurisdiction  by  the  constitution,  but 
the  constitution  also  provided  that  that  juris- 
diction, both  as  to  law  and  facts,  should  be 
with  such  exceptions  and  under  such  regula- 
tions as  congress  shall  make. 

It  is  also  true  that  the  administration  of  jus- 
tice, as  well  as  the  exercise  of  all  the  powers 
of  government,  is  dependent  upon  the  legis- 
lative support  of  these  establishments  through 

10  p.  117. 

11  Ex  Parte  McCardle,  7  Wallace,  p.  506. 

186 


AND  THE  PEOPLE 

their   annual   appropriations.      The   power   of 
the  purse  is  really  the  power  of  sovereignty. 

The  essential  weakness  of  the  judiciary  is 
further  illustrated  in  the  history  of  the 
supreme  court  of  the  United  States.  While 
the  constitution  establishes  the  supreme  court, 
it  leaves  the  number  of  its  members  to  be  fixed 
by  congress.  During  the  administration  of 
President  Andrew  Johnson,  when  congress 
was  at  war  with  the  President  and  did  not  wish 
him  to  make  any  appointments  to  the  court, 
as  it  did  not  wish  its  reconstruction  legislation 
construed  by  his  appointees,  it  reduced  the 
number  of  the  bench,  as  vacancies  occurred, 
from  nine  to  seven,  thus  preventing  him  from 
making  any  appointments,  and  it  did  not 
increase  the  bench  again  to  nine  until  he  had 
retired  from  the  presidency  and  General  Grant 
had  succeeded  him.  In  the  states,  however, 
as  a  rule,  the  number  of  judges  is  fixed  by 
their  constitutions. 


187 


THE  JUDICIARY 

The  Controlling  Power  of  Public  Opinion 

In  the  last  analysis,  it  is  obvious  that  the 
exercise  of  judicial  power  in  this  country, 
whether  in  the  federal  or  state  courts,  is 
dependent  upon  public  opinion.  In  the  words 
of  Professor  Burgess  :^~ 

"It  is,  then,  the  consciousness  of  the  Ameri- 
can people  that  each  law  must  rest  upon  jus- 
tice and  reason,  that  the  Constitution  is  the 
more  ultimate  formulation  of  the  fundamental 
principles  of  justice  and  reason  than  mere 
legislative  acts,  and  that  the  judiciary  is  a 
better  interpreter  of  these  fundamental  prin- 
ciples than  the  legislature.  It  is  this  conscious- 
ness which  has  given  such  authority  to  the 
interpretation  of  the  constitution  by  the 
supreme  court." 

He  calls  attention  to  the  fact  that  when  the 
supreme  court  declares  an  act  unconstitu- 
tional, congress  and  the  President  imme- 
diately accept  the  decision  as  having  annulled 
the    act;    whereas    in    England,    France    and 

12  Political  Science  and  Constitutional  Law,  Vol.  2, 
p.  365. 

188 


AND  THE  PEOPLE 

Germany  such  an  effect  is  scarcely  thought 
of. 

We  may  admit  that  our  rigid  written  con- 
stitutions, both  in  State  and  Nation,  may  tend 
to  make  the  operation  of  public  opinion  slower 
than  in  other  countries,  and  may  also  tend 
sometimes  to  intensify  professional  conserva- 
tism and  to  make  our  lawyers  strict  construc- 
tionists so  that  at  times  they  may  seek  to 
ignore  the  substance  in  searching  for  technical 
arguments  and  objections. 

The  remedy,  however,  does  not  lie  in  de- 
stroying or  impairing  the  independence  of  the 
judges  or  in  submitting  to  the  hustings  grave 
questions  of  constitutional  construction  con- 
cerning the  legislative  power  over  personal 
and  property  rights.  There  are  remedies,  how- 
ever, which  may  provide  effectually  for  the 
undue  obstruction  of  the  popular  will  in 
enacting  desired  legislation. 

The  Power  of  Amending  Constitutions 
While  the  power  of  amending  the  federal 
189 


THE  JUDICIARY 

constitution  under  our  complex  form  of  gov- 
ernment is  comparatively  difficult,  though 
recent  experience  proves  that  this  difficulty  is 
not  insurmountable,  this  is  of  less  importance 
in  view  of  the  comprehensive  character  of  the 
federal  constitution,  so  that  it  is  only  in  grave 
national  emergencies  that  amendments  are 
called  for.  On  the  other  hand,  in  nearly  all 
the  states  the  process  of  amending  the  state 
constitution  is  comparatively  simple.  Thus, 
in  my  own  state  of  Missouri,  at  our  recurring 
biennial  election  we  have  had  in  many  years 
past  from  seven  to  fifteen  separate  amend- 
ments to  the  State  constitution  submitted  to 
popular  vote.  The  same  vote  which  can 
review  a  judicial  decision  in  the  proposed 
recall  of  decisions,  can  prevent  the  possibility 
of  such  decisions  in  the  future  by  repealing 
or  amending  the  provision  of  the  constitution 
on  which  the  decision  was  based.  This  would 
be  an  orderly  and  effective  method  of  enforc- 
ing the  popular  will. 

190 


AND  THE  PEOPLE 

The    State    Constitutions    Should    be    Less 
Restrictive 

In  the  second  place,  as  has  already  been 
pointed  out,  a  very  fertile  cause  of  the  class 
of  decisions  of  State  courts  annulling  State 
laws  as  violative  of  State  constitutions,  is  in 
the  detailed  and  restricted  character  of  the 
legislation  contained  in  such  constitutions, 
particularly  in  those  most  recently  adopted. 
These  are  the  states  where  the  dockets  of  the 
courts  are  crowded  with  constitutional  ques- 
tions, which  should  not  be  raised  in  any  coun- 
try. The  remedy  lies  in  omitting  such  detailed 
legislation  from  constitutions,  making  them 
contain  only  provisions  which  are  proper  in 
the  organic  law,  and  at  the  same  time  making 
them  readily  amendable  when  the  public  need 
demands  upon  due  and  proper  consideration. 

The    Legislative    Product    Should    be    Im- 
proved 

Reference  has  been  made  to  the  close  con- 
nection of  our  restricted  state  constitutions  and 
191 


THE  JUDICIARY 

the  immense  and  deteriorating  volume  of  state 
legislation,  and  to  the  powerful  influence  of 
both  these  factors  in  increasing  so-called  con- 
stitutional litigation  with  its  train  of  distrust, 
which  does  so  much  to  destroy  the  confidence 
which  should  exist  between  the  judiciary  and 
the  people.  Whatever  tends  to  improve  the 
legislative  product  is,  therefore,  a  direct  assist- 
ance in  remedying  the  unfortunate  conditions 
which  now  exist.  Attention  has  already  been 
given  to  this  matter  in  different  states,  and 
official  draftsmen  have  been  appointed  in  one 
or  more  states,  such  as  exist  in  the  British 
Parliament,  where  no  bill  is  introduced  which 
is  not  passed  through  the  hands  of  such  official. 
The  result,  we  are  told,  is  that  the  British 
statutes  are  models  and  free  from  the  verbiage 
and  obscurity  which  characterize  so  much  of 
the  law  making  of  this  country. 

Still  more  important  is  the  organization  of 
bureaus  of  legislative  research,  whereby,  under 
competent   direction,   legislatures  may   be  in- 
192 


AND  THE  PEOPLE 

formed  as  to  what  other  states  have  done  in 
the  way  of  legislative  experiments,  all  obtain- 
able information  given,  and  bills  are  prepared 
for  the  members.  The  state  of  Wisconsin 
has  set  a  fine  example  in  the  organization  of 
such  a  bureau,  and  this  example  is  being  fol- 
lowed in  other  states  and  municipalities.  Such 
a  bureau  should  have  a  very  salutary  influence 
in  improving  the  legislative  product.  What- 
ever accomplishes  this,  will  doubtless  be  effec- 
tive in  relieving  the  conditions  which  now 
oppress  our  judicial  system. 

Reference  has  also  been  made  to  the  sug- 
gestion, which  has  received  the  endorsement 
of  the  American  Bar  Association,  that  the 
statute  of  1T89  should  be  amended  so  that 
the  Supreme  Court  of  the  United  States  may 
grant  writs  of  error  in  cases  where  the  federal 
claim  has  been  denied  in  the  State  court. 
While  this  would  relieve  the  anomaly,  which 
has  been  mentioned,  of  having  the  state  court 
finally  pass  upon  the  application  of  the  Federal 
193 


THE  JUDICIARY 

guaranty  of  due  process  of  law  or  the  equal 
protection  of  the  laws,  the  proposal  is  open 
to  the  objection  that  it  would,  add  to  the  pres- 
ent overcrowded  docket  of  the  Supreme  Court 
of  the  United  States,  and  would  be  open  to 
the  further  objection  that  it  would  increase 
to  a  very  great  degree  the  existing  power  of 
the  Federal  court  as  compared  with  the  State 
courts,  reducing  the  latter  to  a  distinctly  sub- 
ordinate position  in  the  construction  of  the 
guaranties  of  the  fundamental  rights  of  the 
citizen. ^^ 

Complaints  as  to  the  Personality  of  Judges 

The  complaint  against  our  judiciary,  which 
is  voiced  in  the  demand  for  a  recall  of  judges, 
rests  upon  different  considerations  from  that 
involved   in   the   proposed    recall    of   judicial 

1^  It  has  been  proposed  as  essential  to  an  effective 
"recall  of  judicial  decisions"  that  the  "due  process 
of  law"  and  "equal  protection  of  the  laws"  clauses 
should  be  omitted  from  the  state  constitutions. 
Professor  Dodd  in  Political  Science  Quarterly, 
March,    1913. 

194 


AND  THE  PEOPLE 

decisions.  Human  justice  is  necessarily  ad- 
ministered by  men,  and  we  have  found  in  all 
times  that  this  agency  is  subject  to  the  imper- 
fections of  our  common  humanity.  Thus, 
judges,  who  are  physically  strong,  may  be 
prostrated  by  disease,  and  in  the  course  of 
time  all  of  them  are  subject,  as  other  men, 
to  the  psalmist's  limit  of  human  activity. 
Thus,  in  many  of  the  states  there  is  a  retiring 
age,  usually  of  seventy  years,  and,  as  a  rule, 
there  is  no  system  of  pension  for  those  who 
are  thus  compelled  to  retire  on  account  of  age 
or  physical  infirmity.^'*  There  is,  however,  in 
the  laws  of  the  United  States  a  laudable  pro- 

!•*  Mr.  Hamilton,  in  the  79th  FederaHst,  after  re- 
ferring to  the  age  limit  of  retirement  under  the  New 
York  law,  at  that  time  sixty  years,  and  discussing  the 
general  subject  of  age  retiring  limit  of  the  judges, 
says :  "There  is  no  station,  in  relation  to  which  it  is 
less  proper  than  to  that  of  a  judge.  The  deliberating 
and  comparing  faculties  generally  preserve  their 
strength  much  beyond  that  period  in  men  who  sur- 
vive it;  and  when,  in  addition  to  this  circumstance, 
we  consider  how  few  there  are  who  outlive  the  sea- 
son of  intellectual  vigor,  and  how  improbable  it  is 
that  any  considerable  portion  of  the  bench,  whether 

195 


THE  JUDICIARY 

vision  whereunder  judges  who  have  served 
for  ten  years,  and  have  reached  the  retiring 
age,  may  resign  and  receive  their  salary  for 
hfe.  In  England,  after  fifteen  years  of  service, 
or  on  being  disabled  by  permanent  infirmity, 
judges  may  retire  on  a  pension.  In  all  ages 
it  has  been  recognized  that  a  large  human 
experience  as  well  as  soundness  of  intellect  and 
learning  are  essential  for  the  proper  perform- 
ance of  a  judicial  office.  For  this  reason  the 
elders  have  been  selected  both  in  ancient  and 
modern  times.  The  more  reason,  therefore, 
for  making  suitable  provision,  so  that  the 
people  can  utilize  this  wide  experience  while 

more  or  less  numerous,  should  be  in  such  a  situation 
at  the  same  time,  we  shall  be  ready  to  conclude  that 
limitations  of  this  sort  have  little  to  recommend 
them.  In  a  republic  where  fortunes  are  not  affluent, 
and  pensions  not  expedient,  the  dismission  of  men 
from  stations  in  which  they  have  served  their  country 
long  and  usefully,  on  which  they  depend  for  sub- 
sistence, and  from  which  it  will  be  too  late  to  resort 
to  any  other  occupation  for  a  livelihood,  ought  to 
have  some  better  apology  to  humanity  than  is  to  be 
found  in  the  imaginary  danger  of  a  superannuated 
bench." 

196 


AND  THE  PEOPLE 

at  the  same  time  making  provision  for  the 
inevitable  hmit  of  human  activity  by  pension 
for  retiring  judges.  Mr.  Hamilton's  objection 
to  the  retiring  of  judges  by  address  seems  to 
have  been  based  upon  his  belief  that  in  this 
country  pensions  were  not  expedient.  As  we 
have  seen,  however,  a  system  of  retiring  pen- 
sions has  been  adopted  as  to  the  federal 
judges,  and  in  recent  times  the  pensioning 
system  has  been  extensively  adopted  in  busi- 
ness enterprises  for  employees  retired  on 
account  of  age  or  disability. 

Judges  are  also  subject  to  the  imperfections 
of  our  common  humanity  in  other  than  physi- 
cal relations.  We  have  heard  frequent  com- 
plaints that  judges  carry  into  the  judicial  office 
the  tendency  to  prejudge  questions  growing 
out  of  their  educational  environment  and  social 
and  business  dependencies.  We  had  an  im- 
pressive illustration  in  the  Electoral  Commis- 
sion case  in  1877,  where  in  a  grave  national 
emergency  for  which  the  constitution  had 
197 


THE  JUDICIARY 

made  no  express  provision,  judges  of  the 
Supreme  Court  decided  the  questions  sub- 
mitted by  a  strictly  partisan  vote,  and  the 
judges  aligned  themselves  on  the  side  of  their 
respective  partisan  relations  in  the  same  man- 
ner as  did  the  members  of  congress  who  were 
associated  with  them.  It  has  been  charged 
that  certain  so-called  privileged  interests  have 
been  exceptionally  active  in  the  selection  of 
candidates  for  the  elective  bench,  and  some- 
times even  in  securing  the  ear  of  the  appointive 
power  where  judges  are  selected  by  appoint- 
ment. Such  cases,  however,  it  is  believed  are 
exceptional,  and  are  the  unavoidable  incidents 
of  human  institutions,  which  can  only  be  reme- 
died by  the  discriminating  action  of  the 
electorate  or  the  appointing  power. 

The  Efficiency  of  the  Remedy  by  Impeach- 
ment 

There  is  a  remedy,  and  an  effective  one,  for 
the  protection  of  the  people  against  dereliction 
198 


AND  THE  PEOPLE 

of  duty,  and  that  is,  in  the  power  of  impeach- 
ment, the  ancient  common  law  proceeding, 
whereunder  the  Commons  of  England  exer- 
cised the  right  of  procedure  against  anyone, 
whether  in  public  office  or  not,  and  of  trial 
before  the  House  of  Lords.  It  differed  in 
the  common  law  from  the  process  by  bills 
of  attainder  in  that  the  accused  was  allowed 
a  hearing,  and  proofs  were  required,  though 
not  necessarily  with  the  restrictions  of  a  court 
of  justice.  This  remedy  has  become  almost 
obsolete  in  England.  It  is  preserved  in  full 
force  and  vigor  in  the  constitution  of  the 
United  States  and  in  the  constitutions  of  many 
of  the  states  as  a  means  of  removing  delin- 
quent officials.  We  have  had  some  impressive 
examples  of  the  efficiency  of  this  remedy. 

It  has  been  determined  by  the  senate  of  the 
United  States  on  an  impeachment  trial,  though 
by  a  majority  vote,  and  not  by  the  two-thirds 
vote  necessary  for  conviction,  that  resignation 
does  not  protect  an  official  against  subsequent 
199 


THE  JUDICIARY 

impeachment.^^  It  has  also  been  determined 
recently  by  the  senate  by  an  almost  unani- 
mous vote  that  a  judge  may  be  impeached  not 
merely  for  indictable  crimes,  but  for  any  act 
discrediting  his  office  and  prejudicial  to  the 
public  and  therein  constituting  a  dereliction 
of  his  public  duty.  Under  the  constitution 
of  the  United  States  judgment  in  cases  of 
impeachment  extends  no  further  than  removal 
from  office,  and  a  disqualification  to  hold  any 
office  of  honor  or  trust  or  profit  under  the 
United  States ;  but  the  party  convicted  is 
nevertheless  liable  and  subject  to  indictment 
and  to  trial  and  punishment  according  to  law 
for  any  indictable  offense.  The  power  of 
impeachment  is  essentially  a  judicial  power 
exercised  by  a  legislative  body. 

Removal  of  Judges  by  Address 

However  effective  the  provisions  for  im- 
peachment of  judicial  officers  may  be  for  cases 
of  dereliction  of  duty,  this  remedy  obviously 

15  Belknap  case  in  1875. 

200 


AND  THE  PEOPLE 

does  not  reach  many  cases  of  unfitness  for 
the  performance  of  the  duty  of  the  office  which 
involved  no  dereHction  of  duty,  such  as  perma- 
nent disabihty  incapacitating  the  judge  for  the 
duties  of  the  office.  It  is  the  absence  of  an 
efficient  remedy  for  such  cases  that  has  been 
the  mainspring  of  the  demand  for  judicial 
recall  in  some  sections  of  the  country.  It  is 
true  there  ought  to  be  a  prompt  and  efficient 
remedy  for  any  inability  to  perform  judicial 
duty  commensurate  with  the  dignity  and 
responsibility  of  the  judicial  office. 

In  England,  in  the  Act  of  Settlement  of 
1701,  wherein  the  judges  who  have  been  given 
the  tenure  of  good  behavior,  that  is,  for  life 
instead  of  being  subject  to  removal  at  the 
pleasure  of  the  King,  it  was  at  the  same  time 
provided  that  they  should  be  removed  by  the 
King  upon  an  address  from  both  Houses  of 
Parliament.  This  principle  was  incorporated 
in  the  Adjudicature  Act  of  1875,^^  wherein  it 

1^  Section  5. 

201 


THE  JUDICIARY 

is  provided  that  all  the  judges  of  the  High 
Court  of  Justice  and  of  the  Court  of  Appeal, 
with  the  exception  of  the  Lord  Chancellor, 
who,  under  the  English  system,  goes  in  and 
out  with  his  party,  shall  hold  their  offices  as 
such  judges  respectively  during  good  behavior, 
subject  to  a  power  of  removal  by  the  Crown  on 
an  address  presented  by  Parliament. 

In  the  federal  constitution  the  tenure  of 
good  behavior  for  the  judges,  both  of  the 
supreme  and  inferior  courts,  was  adopted ; 
but  the  provision  for  removal  other  than  by 
impeachment  for  dereliction  of  duty  was  not 
adopted.  The  want  of  a  provision  for  remov- 
ing the  judges  on  account  of  inability  was 
objected  to,  but  it  was  claimed  by  Mr.  Hamil- 
ton, in  the  v9th  Federalist,  that  impeachment 
was  the  only  provision  which  was  consistent 
with  the  necessary  independence  of  the  judicial 
character.^"^     A  different  view,  however,  was 

^■^  Constitution  of  Missouri,  Art.  VI,  Sec.  41, 
and  Sections  3893  and  3894  Rev.  Stat.  1909. 

202 


AND  THE  PEOPLE 

taken  in  some  of  the  states,  and  the  example 
of  England  was  followed  in  providing  for  the 
removal  of  judicial  officers  by  address.  Thus, 
in  the  state  of  Missouri, ^^  the  constitution 
provides  for  the  removal  of  judges  by  address 
whenever  the  judge  is  unable  to  discharge  the 
duties  of  his  office  efficiently  by  reason  of  con- 
tinued sickness  or  physical  or  mental  infirmity. 
Two-thirds  of  the  members  of  each  House  con- 
curring, with  the  approval  of  the  Governor, 

IS  Mr.  Hamilton  says  in  this  connection :  "The 
want  of  a  provision  for  removing  the  judges  on 
account  of  inability  has  been  a  subject  of  complaint. 
But  all  considerate  men  will  be  sensible  that  such 
a  provision  would  either  not  be  practised  upon  or 
would  be  more  liable  to  abuse  than  calculated  to 
answer  any  good  purpose.  The  mensuration  of  the 
faculties  of  the  mind  has,  I  believe,  no  place  in  the 
catalogue  of  known  arts.  An  attempt  to  fix  the 
boundary  between  the  regions  of  ability  and  in- 
ability, would  much  oftener  give  scope  to  personal 
and  party  attachments  and  enmities  than  advance  the 
interests  of  justice  or  the  public  good.  The  result, 
except  in  the  case  of  insanity,  must  for  the  most 
part  be  arbitrary;  and  insanity,  without  any  formal 
or  express  provision,  may  be  safely  pronounced  to 
be  a  virtual  disqualification." 
203 


THE  JUDICIARY 

the  judge  is  removed  from  his  office,  but  each 
House  must  state  on  its  journal  the  cause  for 
removal ;  and  he  has  a  right  to  be  heard  in  his 
defense  under  a  procedure  provided  by  statute. 
The  arbitrary  or  partisan  exercise  of  the  power 
is  thus  sought  to  be  prevented.  Under  the 
English  system  the  address  v^^as  originally  a 
petition  to  the  Crown,  but  under  the  modern 
theory  of  the  sovereignty  of  Parliament  the 
address  is  essentially  an  exercise  of  the  legis- 
lative power  of  parliament.  In  England  it  has 
not  been  found  necessary  to  exercise  the  power 
for  the  reason  that  the  judges  who  are  dis- 
abled by  permanent  infirmity  may  retire  on 
a  pension.  In  this  country  the  system  has 
apparently  fallen  into  disuse,  probably  through 
the  existence  of  the  effective  power  of  recall 
through  short  judicial  terms  existing  in  most 
of  the  states  and  the  necessity  for  securing 
popular  vote  for  re-election.  For  reasons 
already  shown  it  is  clear  that  this  remedy  of 
short  terms  is  hopelessly  inadequate  and  in- 
204 


AND  THE  PEOPLE 

consistent  with  any  proper  conception  of  the 
judicial  character. 

The  Rightful  and  Effective  Remedies 

The  public  interest  demanding  the  prompt 
administration  of  justice,  clearly  requires  that 
there  should  be  an  effective  remedy,  not  only 
against  dereliction  of  duty  on  the  part  of 
judges,  but  against  unfitness  for  office  of  any 
kind,  even  physical  infirmity ;  and  protection 
from  interruption  and  delay  in  the  adminis- 
tration of  justice  is  not  inconsistent  with 
judicial  independence,  but  is  demanded  by 
the  vast  importance  and  responsibility  of  the 
judicial  office. 

The  true  remedy  is  to  abandon  our  system 
of  short  terms  in  the  state  courts  and  to  pro- 
vide for  the  appointment  or  election  of  judges, 
as  under  the  English  system,  during  good 
behavior.  The  question  of  appointment  or 
election,  in  my  judgment,  is  not  as  important 
as  this  extension  of  the  judicial  term.  With 
205 


THE  JUDICIARY 

this,  however,  we  should  revive  the  ancient 
remedy  of  making  the  judges'  removal  by 
address  of  the  legislative  body  after  due  hear- 
ing; and  public  opinion  and  the  bar  should 
enforce  the  use  of  this  remedy  whenever  there 
is  any  unfitness  for  the  due  performance  of 
the  grave  duties  of  the  judicial  office.  By 
unfitness  is  meant  a  demonstrated,  permanent 
incapacity  to  perform  the  duties  of  the  office. 
With  this  we  should  provide  for  a  suitable 
pension  when  the  judge  is  removed  from  office 
for  any  cause  not  involving  moral  dereliction. 
Thus  we  could  develop  a  power  of  public 
opinion  which  would,  no  doubt,  in  time  have 
the  effect  in  this  country,  as  it  has  in  England, 
of  obviating  the  necessity  of  calling  the  power 
into  exercise. ^^ 

There  are  encouraging  signs  of  the  develop- 

19  This  public  necessity  was  illustrated  by  a  recent 
act  of  congress  authorizing  the  retirement  of  a  judge 
of  the  supreme  court  who  had  served  but  a  short 
time  and  was  not  qualified  to  retire  under  the  statute, 
but  who  was  permanently  disabled  from  the  perform- 
ance of  his  judicial  duty. 

206 


AND  THE  PEOPLE 

meat  of  a  public  opinion  in  favor  of  longer 
judicial  terms,  and  even  of  a  life  tenure,  and 
of  the  removal  of  judicial  elections,  where 
there  are  popular  elections,  from  the  influence 
of  party  politics.  Such  steps  are  in  the  right 
direction.  The  greatest  political  reform  will 
be  the  removal  of  the  influence  of  party  poli- 
tics from  the  selection  of  judges,  whether  in 
their  appointment  or  in  their  election.  With 
this  should  go  an  effective  and  an  available 
procedure  for  the  removal  of  any  judge,  what- 
ever his  tenure  of  office,  whenever  he  is  unable 
to  discharge  the  duties  of  his  office  with  effi- 
ciency, whether  from  misconduct  or  physical 
infirmity.  Such  should  be  the  direction  of 
public  policy,  and  the  fact  that  such  a  method 
is  available  should  be  a  conclusive  argument 
against  the  adoption  of  any  expedient  which 
would  impair  the  independence  of  the  judges 
and  the  integrity  of  our  constitutional  system. 


207 


IV 


Foot 
Page  Note  Citations 

161         1     Stimson's  Federal  and  State  Constitutions, 

sec.  654. 
168        2     Maine  on  Popular  Government,  ch.  4. 
173        3    Ives  V.  Railroad  Co.,  201  N.  Y.  207. 

177  4    Ransom  on  Majority  Rule  and  the  Judi- 

ciary, p.  40. 

178  5     Address  of  Henry  W.  Taft  at  the   New 

York   Bar  Association,  January,   1913. 

179  6    Veto  Message  of  President  Taft,  August 

15,  1911. 

181  7    Yale  Law  Journal,  Vol.  22,  No.  1. 

8    Annual  Report  of  American  Bar  Associa- 
tion of  1912. 

182  9     West  Publishing  Co.  Docket  for  Novem- 

ber, 1912. 
186       10     Baldwin  on  Am.  Judiciary,  p.  117. 

11     Ex  Parte  McCardle,  7  Wallace,  p.  506. 
188       12     Professor   Burgess,   Political   Science  and 

Constitutional  Law,  Vol.  2,  p.  365. 
194       13     Professor   Dodd,   Political    Science   Quar- 
terly, March,  1913. 
Hamilton,  79th  Federalist. 
Belknap  case  in  1875. 
Adjudicature  Act  1875,  sec.  5. 
Constitution  of  Missouri,  Art.  VL  Sec.  41, 
and   Sections  3893  and  3894  Rev.   Stat. 
1909. 
203       18     Hamilton,  79th  Federalist. 

208 


I 


195 

14 

200 

15 

201 

16 

202 

17 

CONTENTS 


V 

PAGE 

Judicial  Procedure         ....   211 

The  American  Bar  Association  on  Pro- 
cedure  ......   213 

Contrast  with  Foreign  Countries     .  .   214 

Artificial  Rules  of  Evidence  .  .  .   215 

Presumption  of  Prejudice  from  Error     .    217 
The    Modern    Reform    of    English    Pro- 
cedure  ......   220 

Consequences    of     Distrust    of    Judicial 

Power  in  United  States  .  .  .   222 

New  Rules  of  Equity  Practice  in  United 

States  Courts  .  .  .  .227 


The  Fusion  of  Law  and  Equity  Practice 
The  Requirements  of  Written  Opinions 
The  Delay  in  the  Decision  of  Causes 
The  Delays  in  Criminal  Procedure  . 
209 


231 
236 
241 

244 


THE  JUDICIARY 

PAGE 

Self-incrimination  ....   346 

Technicality    the    Sign    of    Undeveloped 

System  of  Law       ....   248 
Importance  of  Independence  of  Judiciary  250 


210 


V 
Judicial  Procedure 

We  have  thus  far  considered  the  develop- 
ment of  the  judicial  power  under  the  complex 
system  of  the  United  States,  whereunder  the 
judiciary  not  only  administers  justice  between 
man  and  man,  but  also  under  our  system  of 
constitutional  law  determines  the  validity  of 
legislative  as  well  as  of  executive  acts  in  the 
enforcement  of  the  controlling  will  of  the 
people  declared  in  our  written  constitutions. 
We  have  found  that  the  people  have  ample 
protection  against  misconduct  in  the  judicial 
office  through  the  power  of  impeachment,  and 
against  unfitness  of  any  kind  in  that  office 
through  removal  by  address,  provided  in  some 
of  our  state  constitutions  modeled  after  that 
power  contained  in  the  laws  of  England.  We 
now  come  to  the  criticism  of  the  adminis- 
tration of  the  law  by  our  judiciary,  in  its  rela- 
211 


THE  JUDICIARY 

tion  to  the  adequacy  of  our  judicial  procedure 
in  the  practical  administration  of  justice. 
This  criticism,  we  must  concede,  is  well 
founded. 

The  popular  as  well  as  the  professional 
arraignment  of  our  system  of  judicial  pro- 
cedure is  too  well  known  to  need  recital.  It 
is  no  exaggeration  to  say  that  the  judicial 
procedure  of  the  United  States  is  now  on  trial 
before  the  bar  of  the  public  opinion  of  the 
country  and  even  of  the  civilized  world.  This 
public  arraignment  of  our  judicial  procedure 
has  appeared  not  only  in  the  popular  press,  but 
in  our  American  and  State  Bar  Associations, 
and  it  has  been  voiced  by  one  of  our  foremost 
citizens,  the  late  President  of  the  United 
States,  himself  an  experienced  jurist,  now  an 
honored  member  of  this  faculty,  who  has 
declared  that  the  most  conspicuous  failure  of 
our  American  civilization  is  in  the  adminis- 
tration of  justice,  both  civil  and  criminal.  It 
has  been  declared  in  our  national  political  plat- 
212 


AND  THE  PEOPLE 

forms  and  has  received  the  most  emphatic 
recognition  in  the  recent  revision  of  the  Rules 
of  Equity  Practice  adopted  by  the  Supreme 
Court  of  the  United  States. 

The  American  Bar  Association  on  Procedure 

Some  twenty-five  years  ago  a  special  com- 
mittee appointed  by  the  American  Bar  Asso- 
ciation found  that  the  average  length  of  a  civil 
lav^^  suit  in  the  United  States  was  from  a  year 
and  a  half  to  six  years;  and  the  Committee 
reported  that,  if  it  were  possible  to  put  into 
ten  words  the  chief  causes  for  the  delay  and 
uncertainty  in  our  judicial  administration,  they 
would  say : 

"Complex  procedure,  inadequate  judiciary, 
procrastination,  retrials,  unreasonable  appeals 
and  uncertain  law." 

Although  a  quarter  of  a  century  has  passed 
since  this  report  was  made,  it  is  no  exaggera- 
tion to  say  that  in  many  states  of  the  country 
the  administration  of  justice  is  still  the  subject 
313 


THE  JUDICIARY 

of  criticism,  the  law's  delays  are  still  the  sub- 
ject of  investigation  in  our  Bar  Associations, 
and  the  inadequacy  of  our  judicial  procedure 
is  the  subject  of  all  but  universal  complaint. 

Contrast  with  Foreign  Countries 

The  delays  and  the  often  resulting  denial  of 
justice  in  our  judicial  procedure  have  been 
impressively  contrasted  with  the  promptness 
and  efficiency  of  the  judicial  systems  of  Great 
Britain,  Canada  and  the  continental  countries 
of  Europe.  Especially  notable  is  this  contrast 
with  the  systems  of  Great  Britain,  from  which 
we  have  inherited  our  common  law,  and  our 
rules  of  evidence  and  the  essentials  of  our 
judicial  procedure.  Professor  Lawson  of 
Missouri,  now  the  editor  of  the  American  Law 
Review,  who  was  especially  delegated  to  inves- 
tigate the  judicial  administration  of  Great 
Britain,  tells  us  that  the  English  Digest  for 
twenty  years  has  not  contained  the  title, 
"Appellate  Procedure,"  and  for  the  reason  that 
214 


AND  THE  PEOPLE 

there  is  no  appellate  procedure  in  the  American 
sense  of  the  term.  Written  opinions,  which 
with  us  are  a  matter  of  course  in  nearly  all 
our  appellate  courts,  and  sometimes  in  trial 
courts,  are  there  far  less  common ;  that  is  to 
say,  the  judges  usually  announce  their  opinions 
orally  and  they  are  taken  down  and  written 
out  by  the  reporters. 

Artificial  Rules  of  Evidence 

This  contrast  in  our  procedure  with  that  of 
Great  Britain  and  other  countries  is  not  only 
in  what  may  be  called  the  appellate,  but  also 
in  the  trial  procedure.  No  feature  of  the 
English  courts  has  impressed  American  law- 
yers who  have  attended  trials  there  as  much 
as  the  comparative  absence  in  the  English 
courts  of  discussions  of  evidence  in  the  admis- 
sion or  exclusion  of  testimony.  All  thought- 
ful lawyers  recognize  that  our  syvStem  of  evi- 
dence, especially  in  its  exclusionary  rules,  is 
essentially  artificial  and  the  outgrowth  of  our 
215 


THE  JUDICIARY 

jury  system,  and  not  adapted  to  the  practical 
administration  of  justice  in  a  busy  commercial 
age.  This  was  forcibly  stated  in  a  recent 
address  by  Governor  Baldwin  of  this  State 
before  the  Missouri  Bar  Association,  wherein 
he  says  that  the  English  judges  made  these 
rules  of  evidence,  for  the  most  part,  a  century 
ago,  and  made  them  because  they,  the  judges, 
had  to  deal  with  juries  composed  of  men  of 
illiterate  and  untrained  minds,  incapable  of 
making  nice  distinctions  and  discriminations 
as  to  the  weight  of  evidence. 

Mr.  Wigmore,  in  his  introduction  to  his 
exhaustive  work  upon  evidence,  says  that  the 
rigid  construction  given  in  the  American 
courts  to  these  exclusionary  rules  and  the  fre- 
quency of  reversals  on  account  of  erroneous 
rulings  growing  out  of  protracted  trials,  are 
largely  owing  to  the  contentious  theory  of  our 
jurisprudence  that  makes  every  appellate 
hearing  a  quest  for  error  rather  than  a  search 
for  justice.  He  finds  a  remedy  in  the  broader 
216 


AND  THE  PEOPLE 

and  more  liberal  training  of  our  lawyers,  while 
Governor  Baldwin  points  out  that  the  only 
solvent  of  the  difficulty  is  to  give  more  and 
more  range  to  the  sound  discretion  of  the  trial 
judge,  and  this,  he  says,  is  the  most  redemptive 
factor  of  our  law  of  evidence  and  will  be  the 
distinguishing  part  that  our  judges  must  play 
in  adapting  our  jurisprudence  to  the  wants  of 
a  commercial  age. 

Presumption  of  Prejudice  from  Error 

Time  will  not  permit  me  to  discuss  the 
details  of  procedure  in  the  different  states  nor 
a  reference  to  all  the  specific  remedies  sug- 
gested. There  can  be  no  question  that  a  very 
frequent  cause  of  reversals  and  new  trials  and 
delays  is  the  doctrine  of  the  presumption  of 
prejudice  from  error.  That  is,  the  appellate 
court  presumes  from  any  erroneous  ruling  in 
the  course  of  a  trial  that  the  defeated  party 
and  appellant  has  been  prejudiced  thereby  and 
the  judgment  against  him  must  be  reversed. 
217 


THE  JUDICIARY 

The  American  Bar  Association  has  petitioned 
congress  for  an  amendment  to  the  federal 
judiciary  act,  so  that  no  judgment  should  be 
set  aside  or  reversed  or  a  new  trial  granted 
for  error  in  any  matter  of  evidence  or  plead- 
ing or  procedure  unless  it  should  appear  that 
the  error  complained  of  had  injuriously 
affected  the  substantial  rights  of  the  parties. 
It  is  true  that  there  has  been  a  difference  of 
judicial  opinion  as  to  the  weight  of  this  pre- 
sumption of  prejudice  from  error,  and  this 
recommendation  of  the  American  Bar  Asso- 
ciation has  not  yet  been  acted  upon  by 
congress. 

The  really  effective  cure,  however,  for  the 
miscarriages  of  justice  which  sometimes  un- 
doubtedly result  from  the  application  of  this 
principle  of  prejudice  from  error,  must  be 
found  in  the  development  of  public  and  judi- 
cial opinion,  as  without  this  any  statutory 
enactment  must  be  unavailing.  This  is  illus- 
trated by  the  fact  that  state  statutes  similar 
218 


AND  THE  PEOPLE 

to  that  proposed  by  the  Bar  Association  have 
not  prevented  some  of  the  state  appellate 
courts  from  holding  that  fatal  prejudice  is 
necessarily  presumed  from  error  in  the  course 
of  the  trial,  and  that  this  presumption  must 
be  rebutted  by  facts  affirmatively  shown  by 
the  record. 

The  correction  of  the  application  of  this 
principle,  however,  has  a  direct  relation  to  the 
elevation  of  the  character  and  independence 
of  the  judiciary.  It  requires  a  broader  intel- 
lectual comprehension  to  determine  the  essen- 
tial justice  of  a  cause  than  to  render  a  decision 
upon  a  hard  and  fast  rule  of  evidence  or  other 
procedure.  Judges  sometimes  decide  cases 
upon  technical  questions  because  they  are 
spared  the  trouble  of  investigating  the  merits, 
and  sometimes,  I  have  heard,  because  they 
believe  the  merits  of  the  case  call  for  such  a 
decision,  but  that  by  deciding  upon  a  techni- 
cality, they  are  spared  the  trouble  of  writing 
an  elaborate  opinion  upon  the  merits. 
319 


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The  Modem  Reform  of  English  Procedure 

This  contrast  of  American  procedure  with 
that  of  England  is  interesting  when  we  recall 
that  the  reform  of  the  English  procedure  is 
comparatively  modern.  It  is  not  many  years 
since  the  delays  of  English  Chancery  were 
satirized  by  Dickens  in  the  case  of  Jarndyce 
V.  Jarndyce.  The  trial  by  battle,  though  long 
obsolete,  was  not  formally  abolished  in  Eng- 
land until  1819,  and  it  is  only  in  comparatively 
recent  times  that  the  relation  of  procedure  to 
the  substantive  law  has  been  clearly  and  dis- 
tinctly understood  in  England.  We  have  fol- 
lowed the  example  of  England  in  abolishing  in 
many  states  the  ancient  common  law  forms 
of  procedure  and  in  adopting  the  so-called 
reform  code  of  procedure,  but  we  are  just 
beginning  to  recognize,  as  has  long  been  recog- 
nized in  England,  that  any  statutory  code  of 
procedure  which  undertakes  to  regulate  all  the 
details  of  practice  is  liable  itself  to  become  the 
subject  of  technical  construction  and  lead  to 
220 


AND  THE  PEOPLE 

the  miscarriage  of  justice.  Thus,  some  of  the 
most  technical  decisions  which  have  startled 
the  country  in  recent  years  have  been  rendered 
in  states  which  have  for  some  years  had  the 
so-called  reform  procedure  on  their  statute 
books.  One  may  naturally  ask  for  the  reasons 
why  reform  in  judicial  procedure  has  been  so 
effectively  established  in  England,  while  it  is 
so  notoriously  laggard  in  this  country,  though 
both  have  inherited  and  administered  the  same 
system  of  substantive  law. 

We  cannot  overlook  the  fact  that  there  is 
in  England  a  vastly  greater  prestige  attending 
the  office  of  judge  than  in  this  country,  due 
no  doubt,  in  great  measure,  to  the  peculiar 
deference  paid  there,  and  in  a  lesser  degree 
in  the  English  colonies,  to  official  station.  It 
is  also  true  that  in  that  country  the  trained 
professional  opinion  of  the  bar  carried  greater 
weight  in  directing  public  opinion  essential  to 
legislative  action,  and  such  action  by  a  sover- 
eign parliament  is  far  more  direct  than 
221 


THE  JUDICIARY 

that    secured    to    the    complex    governmental 
machinery  of  this  country. 

Furthermore,  in  England,  judges  are  re- 
lieved from  the  necessity  of  deciding  the  con- 
stitutional questions  which  are  involved  in  our 
political  system  of  rigid  written  constitutions, 
both  state  and  federal,  and  the  judges  thereby 
escape  the  criticism  which  we  considered  in 
the  last  lecture,  aroused  by  the  exercise  of 
this  duty  among  those  who  are  impatient  of 
all  restraint  upon  the  speedy  accomplishment 
through  legislation  of  desired  social  reforms. 

Consequences  of  Distrust  of  Judicial  Pov^rer 
in  United  States 

When  we  turn  from  this  situation  in  Eng- 
land to  that  in  this  country,  we  find  that  the 
deplorable  inadequacy  of  our  judicial  system 
which  is  so  sharply  <:ontrasted  with  that  of 
other  countries  has  been  developed,  at  least 
in  the  State  courts  in  the  United  States,  during 
222 


AND  THE  PEOPLE 

a  period  of  legislative  activity  directed  against 
the  common  law  independence  of  the  judges, 
and  resulting  in  effectively  limiting  their  com- 
mon law  powers.  It  has  been  a  period  of 
progressive  democratization  of  the  courts, 
which  apparently  in  some  states  is  not  yet 
ended.  In  a  great  majority  of  the  states, 
judges  of  the  state  courts,  both  of  the  trial 
and  supreme  courts,  are  nominated  and  elected 
by  the  people.  Mr.  Bryce,  in  the  recent  re- 
vision of  his  commentaries  upon  our  institu- 
tions, says  that  the  American  Bench  has  suf- 
fered from  the  all-prevalent  system  of  popular 
election  and  the  scanty  remuneration  allotted. 
Since  he  wrote  this  revision,  five  of  the 
states  have  adopted  the  principle  of  direct 
judicial  recall,  so  that  the  judges  who  make 
unpopular  decisions,  that  is,  decisions  disap- 
proved by  the  then  majority  of  the  voters, 
can  be  summarily  removed  from  office  by 
popular  vote.  In  nearly  all  the  States,  the 
judges  are  subject  to  a  recall  hardly  less  effec- 
223 


THE  JUDICIARY 

tive  in  the  short  judicial  terms,  which  require 
them  to  submit  to  the  judgment  of  the  voters 
at  frequent  intervals  and  to  take  their  chances 
with  public  nominations  and  the  changing 
political  control  of  the  polls.  This  legislation 
based  on  a  distrust  of  the  judicial  power  has 
extended  beyond  the  shortening  of  the  judicial 
terms.  Although  the  ancient  forms  of  plead- 
ing have  been  generally  abolished,  the  statutes 
of  most  of  the  states  undertake  to  provide 
the  details  of  judicial  procedure,  and  in  many 
the  trial  judges  are  compelled  to  give  their 
instructions  to  the  jury  in  writing  and  are 
forbidden  to  comment  upon  the  testimony. 
In  some  of  the  states  the  appellate  judges  are 
forbidden  to  exercise  any  discretion  as  to 
what  opinions  should  be  given  in  writing,  and 
therefore  must  give  them  all  in  writing, 
whether  important  or  unimportant,  and  are 
compelled  to  set  out  in  their  opinions  a  full 
statement  of  the  facts  and  the  reasons  for 
their  conclusion. 

224 


AND  THE  PEOPLE 

This  is  the  judicial  procedure  which  has 
proven  inadequate  for  the  demands  of  a  busy 
commercial  age  and  has  become  the  dread  of 
our  business  men  and  the  sport  of  our  satirists. 
It  has  resulted  in  congestion  in  the  appellate 
courts  of  many  of  the  states,  causing  delay, 
and,  in  effect,  denial  of  justice.  An  instructive 
and  impressive  conclusion  which  we  must 
draw  from  these  considerations  is  that  the  only 
effective  remedy  for  this  deplorable  situation 
is  the  vesting  of  a  larger  discretion  in  the 
judges,  so  that  they  may  have  the  power  and 
the  independence  to  disregard  technicalities,  to 
regulate  the  rules  of  procedure,  and  inaugu- 
rate a  reform  of  the  anomalies  of  our  archaic 
rules  of  evidence.  We  must,  therefore,  retrace 
our  steps,  and  vest  not  less,  but  more,  inde- 
pendence in  our  judges. 

Those  who  seek  to  impair  the  independence 
that  they  still  have  by  holding  above  them  the 
threat  of  summary  dismissal  by  popular  peti- 
tion, or  by  reviewing  their  opinions  at  the 
225 


THE  JUDICIARY 

hustings,  will  only  aggravate  our  existing 
defects  in  the  administration  of  justice.  We 
can  not  remedy  the  existing  situation  until  we 
enlarge  and  dignify  the  office  of  judge.  This 
consideration  is  emphasized  by  the  contrast 
with  the  procedure  in  the  English  courts,  to 
which  attention  has  already  been  called.  It 
is  true  we  can  not  in  this  country  give  our 
judges  the  deference  and  prestige  which  are 
due  to  inherited  social  conditions,  but  we  can 
secure  a  judicial  independence,  even  in  an 
elective  judiciary,  which  will  rest  upon  a  more 
enduring  basis  than  that  of  England — upon  the 
conviction  of  an  enlightened  self-governing 
people,  that  the  prompt,  efficient  administration 
of  justice  can  not  be  secured  except  through 
the  wide  judicial  discretion  of  an  independent 
judiciary.  We  can  not  in  this  country  secure 
judicial  reforms  through  the  enactments  of  a 
sovereign  parliament,  applicable  throughout 
the  country,  but  the  complex  machinery  of  our 
government  delays  only  the  whim,  and  not 
226 


AND  THE  PEOPLE 

the  will,  of  the  people.  The  true  philosophy 
of  our  governmental  system  is  that  it  only 
secures  that  sober  second  thought  of  all  the 
people  which  is  essential  to  all  enduring  reform 
in  human  progress. 

New   Rules   of   Equity   Practice   in    United 
States  Courts 

These  considerations  are  forcibly  illustrated 
by  the  recent  Rules  of  Practice  in  the  Courts 
of  equity  of  the  United  States,  promulgated 
by  the  supreme  court  of  the  United  States 
November  4,  1912,  and  which  took  effect  on 
February  1  of  this  year.  Judge  John  F.  Dil- 
lon in  his  lectures  in  this  course  in  1894,^ 
remarks  that  in  no  other  system  of  juris- 
prudence do  we  witness  the  combating  and 
conflicting  rules  which  mark  our  division  of 
rights  and  remedies  into  legal  and  equitable. 
He  says  that  the  separation  of  what  we  term 
equity  from  law  was  originally  accidental,  or 

1  Laws  and  Jurisprudence  of  England  and 
America,  p.  386. 

227 


THE  JUDICIARY 

at  any  rate  was  unnecessary,  and  rests  upon 
no  principle,  and  he  predicts  that  the  existing 
diversity  of  rights  and  remedies  must  disap- 
pear and  be  replaced  by  a  uniform  system  of 
rights  as  well  as  remedies. 

No  one  can  read  these  new  revised  rules 
of  practice,  comparing  them  with  those  which 
had  existed,  in  substance,  since  the  foundation 
of  the  government,  without  realizing  that  the 
supreme  court  is  convinced  of  the  necessity 
of  radically  reforming  our  procedure  to  meet 
the  wants  of  a  commercial  age,  and  also  that 
the  courts  are  the  only  competent  authority 
to  make  these  detailed  rules  of  procedure. 

Public  attention  has  been  called  to  so  much 
of  these  rules  as  regulate  the  matter  of  the 
issuance  of  temporary  injunctions,  but  this 
requirement,  in  rule  73,  really  lays  down  no 
new  principle,  in  that  restraining  orders  must 
not  be  granted  without  notice,  without  proof 
of  immediate  and  irreparable  loss  or  damage, 
which  the  courts  do  not  already  enforce. 
228 


AND  THE  PEOPLE 

There  are  other  provisions,  however,  such  as 
the  doing  away  with  the  separate  return  day, 
the  aboHtion  of  demurrers,  pleas  and  replies, 
and  simplifying  the  pleadings ;  and  more  im- 
portant than  all,  the  provisions  that  testimony 
must  usually  be  taken  in  open  court,  and  that 
testimony  by  deposition  must  be  the  exception, 
and  not  the  rule,  are  of  far-reaching  impor- 
tance. Other  important  provisions  are  in 
rules  22  and  23,  which  recall  the  view  of 
Judge  Dillon  above  quoted,  that  if  at  any 
time  it  appear  that  a  suit  commenced  in  equity 
should  have  been  brought  as  an  action  on  the 
law  side  of  the  Court,  it  shall  be  forthwith 
transferred  to  the  law  side  and  be  there  pro- 
ceeded with,  with  only  such  alteration  in  the 
pleadings  as  shall  be  essential;  and  if  in  any 
suit  in  equity,  matter  ordinarily  determinable 
at  law  arises,  such  matter  shall  be  determined 
in  that  suit,  according  to  the  principles  appli- 
cable, without  sending  the  case  or  question  to 
the  law  side  of  the  court. 
229 


THE  JUDICIARY 

Thus,  in  rule  25  it  is  provided  that  a  bill 
of  complaint  shall  contain  a  short  and  simple 
statement  of  the  ultimate  facts  upon  which  the 
plaintiff  asks  relief,  omitting  any  mere  state- 
ment of  evidence.  And  the  same  requirement 
is  made  in  rule  30  as  to  the  answer  of  the 
defendant. 

Time  will  not  permit  a  detailed  statement  of 
these  rules,  but  it  is  sufficient  to  call  atten- 
tion to  the  very  important  provision  made  in 
rule  75,  for  the  preparing  of  the  cases  for 
appeal,  whereunder  the  duty  is  imposed  upon 
the  solicitors  of  condensing,  so  that  it  may  be 
presented  in  simple  and  succinct  form  to  the 
appellate  court.  And  under  rule  76  it  is  pro- 
vided that  special  care  must  be  taken  to  avoid 
the  inclusion  in  the  transcript  on  appeal  of 
more  than  one  copy  of  any  paper,  and  to 
exclude  the  formal  and  immaterial  parts  of 
all  exhibits,  documents  and  other  papers 
included  therein.  And  it  is  further  pro- 
vided that  costs  for  the  infraction  of  such 
230 


AND  THE  PEOPLE 

requirements  may  be  imposed  upon  offending 
solicitors,  as  well  as  parties. 

The  promulgation  of  these  rules  by  the 
supreme  court  of  the  United  States,  practi- 
cally revolutionizing  the  time-honored  proced- 
ure in  courts  of  equity,  must  necessarily  have 
a  profound  and  far-reaching  influence  in  the 
different  states.  It  is  a  signal  illustration  of 
the  importance  of  the  preparation  of  rules  of 
procedure  by  the  judges  who  are  to  administer 
them.  Surely  the  power  which  can  make  a 
judgment  can  prescribe  how  it  is  to  be  made. 
It  is  well  said  by  Professor  Wurtz-  that  alto- 
gether these  rules  indicate  a  most  determined 
effort  on  the  part  of  the  highest  court  of  the 
land  to  bring  about  a  reform  which  the  pub- 
lic has  long  been  demanding. 

The  Fusion  of  Law  and  Equity  Practice 

The  adoption  of  these  rules  by  the  supreme 
court  is  of  vast  importance,  not  only  in  sim- 

2  See  Yale  Law  Journal,  January,  1913,  on  the 
New  Equity  Rules  of  the  United  States,  p.  141. 

231 


THE  JUDICIARY 

plifying  the  procedure  in  equity  in  the  federal 
courts,  but  also  in  the  tremendous  stimulus 
it  will  give  to  the  reform  procedure  through- 
out the  United  States.  It  also  suggests  the 
broader  question,  discussed  by  Judge  Dillon, 
to  which  reference  has  been  made,  as  to  the 
essentially  artificial  and,  as  he  terms,  originally 
accidental  distinction  between  law  and  equity 
in  the  courts  of  the  United  States.  It  is 
interesting  to  see  how  this  problem,  which 
does  not  exist  in  continental  countries,  has 
been  sought  to  be  solved  in  England.  We 
find  there  the  admission  of  equitable  defenses 
in  common  law  actions,  and  that  an  equity 
court  is  enabled  to  obtain  the  verdict  of  a  jury 
upon  disputed  facts  without  the  old  and  cum- 
bersome method  of  remitting  the  whole  case 
to  the  common  law  court  for  a  trial  upon  a 
special  issue. 

In  this  connection  we  should  observe  that 
this  great  reform  has  been  effected  in  Eng- 
land in  the  fusion  of  equity  and  common  law 
232 


AND  THE  PEOPLE 

practice,  so  far  as  in  the  nature  of  things  it 
can  be  effected,  by  the  rules  of  practice  which 
are  estabhshed,  and  can  be  changed  by  the 
Lord  Chancellor  with  the  approval  of  the 
majority  of  the  judges.  These  changes  must 
be  submitted  to  Parliament,  and  they  become 
void  if  that  house  passes  a  resolution  of  veto 
within  forty  days.  I  quote  from  a  recent 
observer  of  the  English  practice: 

"The  consequences  of  this  very  sensible 
arrangement  are  that  the  vast  improvements 
in  practice  which  have  so  greatly  facilitated 
and  accelerated  English  litigation  have  been 
effected  by  the  courts  and  bar  of  their  own 
initiative  without  the  necessity  of  a  reliance 
upon  the  action  of  a  legislative  body  largely 
incapable  of  dealing  with  such  technical  and 
important  questions." 

This  emphasizes  the  fundamental  principle 
which  lies  at  the  basis  of  any  hope  of  reform, 
and  we  must  enlarge  judicial  discretion  and 
dignify  the  office  of  judge  before  we  can 
hope  for  any  permanent  reform. 
233 


THE  JUDICIARY 

If  time  permitted,  I  should  call  attention 
to  the  movements  for  reform  of  procedure  in 
the  different  states.^  I  am  safe  in  saying  that 
in  many  of  the  legislatures  now  in  session, 
reforms  based  upon  these  fundamental  prin- 
ciples are  being  urged. 

The  limits  of  this  lecture  will  not  permit  a 
reference  to  these  different  enactments,  nor 
to  the  specific  remedies  suggested.  A  very 
comprehensive  recommendation  has  been  ap- 
proved by  the  American  Bar  Association  that 
the  whole  judicial  power  of  a  state,  at  least 
for  civil  causes,  should  be  vested  in  one  great 
court,  of  which  all  the  trial  tribunals  should 
be  branches  or  divisions,  that  being  in  effect 
the  English  system,  which  has  eliminated  the 
technical  questions  of  procedure  which  embar- 
rass and  delay  our  courts.  This  plan  contem- 
plates such  an  organization  of  the  judicial 
system  as  will  prevent  needless  waste  of  time, 

3  See  New  Jersey  Practice  Act  of  1912,  Yale  Law 
Journal,  January,  1913,  by  Edward  Q.  Keasley. 

234 


AND  THE  PEOPLE 

much  duplication  of  records,  and  the  like,  thus 
obviating  expense  to  the  litigant  and  cost  to 
the  public.  Some  states  have  already  taken 
steps  in  this  direction,  as  in  abolishing  the 
requirement  of  a  motion  for  new  trial  as  an 
essential  for  appeal,  and  the  needless  formali- 
ties in  preserving  exceptions  to  adverse  ruling, 
and  the  distinction  between  matters  of  record 
and  matter  of  exception,  with  which  many  of 
our  appellate  courts  are  filled  and  which  are 
unknown  in  England  and  in  Canada,  and, 
indeed,  in  any  other  civilized  country. 

A  most  important  and  effective  step  in  the 
reform  of  judicial  procedure  would  be  an 
act  of  congress  authorizing  the  supreme  court 
to  adopt  rules  for  uniformity  in  pleading  and 
procedure  in  law  cases  in  the  federal  courts 
and  do  away  with  the  attempted  conformity 
with  state  practices  in  common  law  actions. 
The  effect  would  doubtless  be  far-reaching  in 
promoting  uniformity  in  the  states  with  the 
federal  procedure. 

235 


THE  JUDICIARY 
The  Requirements  of  Written  Opinions 

There  is  another  very  important  branch  of 
this  matter  of  procedure,  which  relates  partic- 
ularly to  the  published  reports  of  our  appel- 
late courts,  which  is  becoming  a  burden  almost 
too  great  to  be  borne.  It  seems  that  we  shall 
be  compelled  either  to  diminish  the  number  of 
appeals  by  limiting  the  right  of  appeal,  or  we 
must  reform  our  present  system  of  requiring 
written  opinions  in  all  appealed  cases,  however 
unimportant  as  precedents.  The  organization 
of  intermediate  courts,  as  we  have  found  by 
experience  in  my  state,  has  only  aggravated 
the  difliculty,  as  the  opinions  of  these  courts 
are  required  to  be  written  and  published. 

I  am  not  considering  now  the  possible  effect 
of  the  multiplied  accumulation  of  case  law 
upon  the  doctrine  of  judicial  precedent,  which 
is  such  a  distinguishing  feature  of  our  English 
and  American  jurisprudence,  as  that  is  too 
large  a  subject  for  present  discussion;  but  I  do 
call  attention  to  the  growing  practical  neces- 
236 


AND  THE  PEOPLE 

sity  for  controlling  and  limiting  the  publication 
of  the  multiplication  of  all  written  judicial 
opinions.  As  Professor  Lavvson  has  pointed 
out,  the  written  opinion  is  an  American  inno- 
vation in  the  law.  At  English  common  law, 
the  judgments  were  always  oral,  except  in  very 
special  cases,  where  there  was  a  curia  vult 
advisari,  and  the  English  reports  were  made 
by  lawyers  who  sat  in  court  and  took  down 
the  judgments  in  their  notes  from  the  lips 
of  the  judges.  What  need  is  there  for  an 
appellate  judge  to  include  in  his  opinion 
copious  citations  from  text-books  and  opinions 
from  dififerent  parts  of  the  country  upon  plain 
propositions  of  law? 

Lord  Coke  says,"*  "If  judges  should  set  down 
the  reasons  and  causes  of  their  judgments 
within  every  record,  that  immense  labor  should 
withdraw  them  from  the  necessary  service  of 
the  commonwealth,  and  their  records  should 
grow  to  be  like  elephantini  libri,  of  infinite 

*  Coke's  Reports,  Part  3,  Pref.  p.  3. 
237 


THE  JUDICIARY 

length,  and,  in  mine  opinion,  lose  some  of  their 
present  authority  and  reverence;  and  this  is 
worthy  for  learned  and  grave  men  to  imitate." 

These  remarks  of  Lord  Coke  were  quoted 
by  Justice  Field,  then  chief  justice  of  the 
supreme  court  of  California  and  afterwards 
justice  of  the  supreme  court  of  the  United 
States,  in  an  opinion  holding  invalid  a  statute 
of  California  requiring  the  supreme  court 
judges  to  give  the  reasons  of  its  decisions  in 
writing.  He  said  the  practice  of  written 
opinions  was  of  modern  origin,  and  that  the 
legislature  could  no  more  require  the  court 
to  give  the  reasons  for  its  judgments,  than 
the  court  could  require  the  legislature  to  give 
the  reasons  for  its  enactments.^ 

This  view  has  not  prevented  some  of  our 
states,  as  already  pointed  out,  from  specifically 
providing,  both  by  constitutions  and  by  stat- 

5  Houston  V.  Williams,  13  Calif.  24.  This  ruling 
has  been  followed  in  De  Votie  v.  McGerr,  14  Colo. 
577 ;  and  in  Arkansas,  Vaughan  v.  Hart,  49  Ark.  160. 

338 


AND  THE  PEOPLE 

utes,  that  appellate  judges  shall  give  their 
opinions  in  writing. 

It  may  be  said  in  passing  that  stenographers, 
though  indispensable  to  the  exigencies  of  mod- 
ern life,  have  not  been  an  unmixed  good  to 
the  Bar  and  the  public  in  the  preparation  of 
judicial  opinions.  I  have  heard  learned 
judges  say  that  such  was  their  volume  of  busi- 
ness, that  they  had  no  time  to  condense  their 
opinions,  and  that  they  were  compelled  to  give 
to  the  profession — printed  at  the  cost  of  the 
public — the  results  of  their  unrevised  dicta- 
tions. 

The  only  effective  remedy  in  this  enormous 
multiplication  of  law  books,  which  are 
searched  for  judicial  precedents,  is  in  the 
limiting  of  writing  formal  opinions  to  those 
cases  which  are  deemed  to  be  important  as 
precedents.  This  determination  must  be  made 
by  some  authority ;  and  here  again  we  find  the 
necessity  of  vesting  a  larger  discretion  in  our 
courts.  No  doubt  these  provisions  requiring 
239 


THE  JUDICIARY 

written  opinions  were  enacted  from  the  dis- 
trust of  the  judges,  and  with  the  view  of  com- 
pelHng  evidence  of  the  performance  by  their 
judges  of  their  duty  in  the  examination  of  the 
cases  decided  by  them.  But  the  time  has  come 
when  this  jealous  distrust  of  the  judges  must 
give  way  to  the  necessity  of  a  prompt  and 
speedy  administration  of  justice  for  the  people. 
The  great  guiding  principles  of  the  law  are 
now  determined,  though  the  infinite  complexity 
of  human  transactions  will  continue  to  call  for 
new  applications  of  these  controlling  princi- 
ples. It  must  be  conceded  that  our  printed 
volumes  of  reports  are  crowded  with  opinions 
that  can  be  of  no  conceivable  value  in  the 
decision  of  future  controversies. 

What  I  have  said  in  relation  to  the  require- 
ment of  written  opinions  in  appellate  courts 
is  more  applicable  to  our  western  states  than 
to  some  of  the  eastern  states.  Thus,  I  under- 
stand that  in  the  state  of  New  York  there  is 
no  requirement  of  writing  opinions  by  the 
240 


AND  THE  PEOPLE 

judges  of  the  appellate  courts,  and  that  the 
matter  is  left  entirely  to  the  discretion  of  each 
judge  or  the  court  of  which  he  is  a  member. 
The  result  is  that  as  a  rule  the  affirmances  in 
the  New  York  court  of  appeals  are  without 
opinions,  unless  the  cases  are  of  public  impor- 
tance. The  New  York  statute  pemiits  appeals 
from  interlocutory  motions  to  a  far  greater 
degree  than  is  allowed  in  most  of  our  states; 
and  the  enormous  business  of  their  courts 
could  not  be  transacted  if  the  writing  of  all 
opinions  in  the  appellate  courts  was  the  rule 
as  in  our  western  states. 

The  Delay  in  the  Decision  of  Causes 

There  are  other  causes  of  delay  in  the 
administration  of  justice  in  this  country  which 
have  been  the  subject  of  popular  as  well  as 
professional  criticism — some  of  them  have 
been  incidentally  alluded  to — and  I  can  not, 
within  the  limits  of  this  discussion,  presume 
to  enumerate  them  in  detail.  Thus,  the  delay 
241 


THE  JUDICIARY 

in  the  decision  of  causes  is  a  grave  subject  of 
complaint.  This  is  largely  owing,  no  doubt,  to 
our  insistence,  in  many  states,  upon  written 
opinions  in  the  appellate  courts  in  all  cases, 
whether  important  or  unimportant.  The  prac- 
tice of  judges,  particularly  in  appellate 
courts,  of  holding  cases  under  advisement  for 
months,  even  for  years,  has  given  just  ground 
for  both  popular  and  professional  criticism. 
The  value  of  oral  argument  in  such  cases  is 
necessarily  lost.  No  feature  of  our  American 
procedure  is  more  adversely  commented  upon 
by  jurists  from  England,  continental  countries, 
and  even  from  Canada,  than  this.  It  would 
seem  far  better  that  judges  of  appellate  courts 
should  only  hear  such  cases  as  they  can 
promptly  decide  while  the  oral  arguments  are 
fresh  in  their  minds,  instead  of  devoting  con- 
secutive days  to  hearing  a  large  number  of 
cases  argued  which  are  to  be  written  up  weeks 
and  months  thereafter.  Such  a  delay  of  jus- 
tice easily  becomes  a  denial  of  justice.  Far 
242 


AND  THE  PEOPLE 

different  is  tlie  practice  of  the  English  appellate 
courts.  A  few  years  since  I  heard,  in  the 
Court  of  Chancery,  the  argument  of  a  new 
question  in  the  law  of  Charitable  Trusts  made 
in  the  morning;  and  the  same  was  decided  by 
the  judges  in  oral  opinions  immediately  after 
the  noon  recess."  In  the  appellate  courts 
of  this  country  such  a  case  would  doubtless 
have  involved  a  delay  of  weeks,  and  perhaps 
months,  after  the  argument  before  an  exhaus- 
tive written  opinion  with  citations  and  quota- 
tions from  analogous  cases  would  be  handed 
down. 

The  State  of  California  attempted  to  remedy 
this  evil  by  providing,  in  its  state  constitu- 
tion, that  judges  should  not  draw  their  salaries 
until  they  had  certified  that  they  had  no 
case  under  advisement  for  more  than  the  pre- 
scribed number  of  days.  I  have  understood 
that  this  was  evaded  by  the  judges  causing 

«  See  In  re  Nottage  L.  R.  (1895)  2d  Chancery,  649, 
holding  that  a  legacy  to  a  trust  for  the  promotion  of 
yachting  was  not  a  charitable  trust. 

243 


THE  JUDICIARY 

the  submission  of  all  cases,  which  were  not 
decided  at  the  end  of  the  term,  to  be  set  aside 
and  the  causes  continued  to  the  next  term 
for  argument.  Similar  attempts  have  been 
made,  I  understand,  in  other  states.  It  seems 
that  the  true  remedy  is  to  simplify  procedure, 
to  relieve  judges  from  the  necessity  of  writing 
opinions  in  unimportant  cases,  and  for  the 
judges  themselves  to  take  no  case  under  sub- 
mission which  cannot  be  determined  within  a 
reasonable  time,  which  must  be  adjusted,  of 
course,  to  the  complexity  of  the  case. 

The  Delays  in  Criminal  Procedure 

What  has  been  said  applies  with  even  greater 
force  to  the  procedure  in  criminal  cases.  It 
is  true  that  such  cases  are  usually  advanced 
in  the  appellate  courts,  and  it  is  also  true  that 
in  England  there  has  recently  been  allowed 
an  appeal  in  criminal  cases ;  but  even  with  that, 
the  delays  in  the  enforcement  of  justice  in 
criminal  cases  are  far  greater  in  this  country 
244 


AND  THE  PEOPLE 

than  in  any  other  part  of  the  civiHzed  world. 
No  doubt  a  very  fertile  cause  of  the  delays 
and  miscarriages  of  justice  in  criminal  cases 
is  the  doctrine  of  the  presumption  of  prejudice 
from  error,  to  which  reference  has  been  made. 
What  has  been  said  of  the  necessity  of  enlarg- 
ing the  discretion  of  judges  in  relation  to  the 
rules  of  evidence  and  of  the  senseless  formali- 
ties in  regard  to  exceptions,  applies  with  even 
greater  force  to  criminal  cases. 

Historic  reasons  also  existed  in  this  country 
for  the  jealous  guarding  of  the  rights  of  the 
accused  in  prosecutions  by  the  State.  When 
our  Constitution  was  framed  the  statutory 
criminal  law  in  England  was  most  drastic,  and 
the  judges  found  it  necessary  from  considera- 
tions of  humanity  to  strain  every  technicality. 
Thus,  the  rule  of  protection  against  self- 
incrimination,  which  is  adopted  in  the  fifth 
amendment  of  the  federal  constitution,  and 
in  nearly  all  of  the  state  constitutions,  has 
been  cherished  in  this  country  as  one  of  the 
245 


THE  JUDICIARY 

safeguards  of  personal  liberty.  However  im- 
portant this  exemption  was  in  past  centuries, 
when  the  individual  needed  protection  against 
the  power  of  the  state,  a  far  different  question 
has  been  presented  in  our  modern  civilization, 
when  society  needs  protection  against  organ- 
ized crime.  This  distinction  was  forcibly  pre- 
sented some  years  since  by  Governor  Baldwin 
of  your  state,  in  an  address  to  the  American 
Bar  Association.'^ 

Self-incrimination 

To  such  an  extent  has  this  theory  of  the 
exemption  from  self-incrimination  been  car- 
ried in  this  country  that  in  many  of  the  states 
where  accused  parties  are  permitted  to  testify, 
courts  are  forbidden  to  comment  to  the  jury 
upon  such  refusal,  thus  ignoring  the  obvious 
deduction  which  every  reasoning  man  would 
draw  from  the  refusal  of  an  accused  party  to 
explain  incriminating  circumstances.     Such  an 

"  American  Bar  Association,  rep.  1883. 
246 


AND  THE  PEOPLE 

exemption  is  unknown  in  continental  countries, 
where  they  act  upon  the  theory  that  a  man  who 
is  innocent  would  desire  to  make  full  explana- 
tion. In  this  country  our  constitutional  immu- 
nities have  compelled  the  public  authorities  to 
resort  to  devious  methods,  such  as  the  "third 
degree"  examination  of  accused  parties. 

In  a  recent  decision  the  Supreme  Court  of 
the  United  States^  has  held  that  this  exemp- 
tion from  self-incrimination,  though  secured 
as  against  federal  action  by  the  fifth  amend- 
ment to  the  United  States  constitution,  is  not 
one  of  the  fundamental  rights  of  national  citi- 
zenship so  as  to  be  included  among  the  privi- 
leges and  immunities  of  the  citizens  of  the 
United  States,  which  the  states  are  forbidden 
by  the  fourteenth  amendment  to  abridge,  and 
that  this  exemption  is  not  safeguarded  as 
against  state  action  by  the  provision  of  the 
fourteenth  amendment  that  no  state  shall 
deprive  any  person  of  life,  liberty  or  property 

8  Twining  v.  New  Jersey,  211  U.  S.  78. 
247 


THE  JUDICIARY 

without  due  process  of  law.  This  was  in  a 
New  Jersey  case,  and  in  that  state  the  courts 
are  allowed  to  call  the  attention  of  the  jury- 
to  the  refusal  of  an  accused  person  to  testify, 
although  he  is  not  compelled  to  testify.  The 
court  affirmed  the  conviction  in  such  a  case, 
holding  that  the  exemption  from  compulsory 
self-incrimination  had  been  developed  as  a  rule 
of  evidence  by  the  English  courts  and  was  not 
included  in  the  due  process  of  law  guaranteed 
by  Magna  Charta.  This  decision  is  of  great 
importance  as  showing  the  change  in  public 
and  judicial  opinion  in  recognizing  the  dan- 
gers pointed  out  by  Governor  Baldwin,  in  that 
now  society  needs  protection  against  crime  as 
much  as,  or  more  than,  the  accused  needs  pro- 
tection against  the  power  of  the  State. 

Technicality  the  Sign  of  Undeveloped  Sys- 
tem of  L,av/ 

The  situation  in  this  country  in  our  judicial 
procedure  is  the  more  intolerable,  and  indeed 
248 


AND  THE  PEOPLE 

indefensible,  when  we  consider  that  it  is  now 
recognized  by  the  students  of  historical  juris- 
prudence that  extreme  technicality  is  a  sign 
of  an  undeveloped  system  of  law,  in  which 
legal  rights  are  subordinate  to  the  procedure 
to  enforce  them,  wherein  the  substance  is  sec- 
ondary to  the  form.  Centuries  ago,  the  main 
business  of  the  colirts  was  in  ascertaining  rules 
that  litigants  should  follow,  and  this  extreme 
technicality  and  formalism  in  the  early  days 
of  society  was  a  step,  but  only  the  first  step, 
toward  a  rational  system  for  determining  con- 
troversies. It  is  better  than  private  war.  That 
is,  the  determination  by  chance  and  wager  of 
battle  was  an  advance  upon  that  primitive 
state  where  men  took  the  law  into  their  own 
hands.  We  now  recognize  that  the  demand 
for  simplicity  in  procedure  does  not  spring 
from  ignorant  reformers  and  radical  icono- 
clasts, but  is  a  progressive  step  in  the  ra- 
tional advance  of  a  progressive  jurisprudence. 
Forms  were  regarded  with  superstitious  rever- 
249 


THE  JUDICIARY 

ence  in  the  early  stages  of  society,  but  we  now 
recognize  that  the  simpler  the  procedure  the 
better  it  serves  its  purposes.  It  does  not 
mean  that  accuracy  and  precision  of  state- 
ment in  judicial  procedure  shall  be  any  less 
important  than  they  are  now,  or  that  a  clear 
and  concise  statement  of  the  facts  in  issue  will 
not  always  be  effective.  Substance  and  not 
form,  however,  must  be  of  the  first  importance. 
It  does  not  mean  that  we  shall  substitute  haste 
and  want  of  consideration  for  deliberation  and 
judgment;  but  it  does  mean  that  our  judicial 
machinery  must  be  so  modeled  that  justice 
can  be  literally  brought  home  to  the  people, 
and  that  busy  men  can  afiford  to  litigate  the 
complicated  questions  arising  in  our  complex 
industrial  life. 

Importance  of  Independence  of  Judiciary 

The  realization  of  this  reform  in  our  pro- 
cedure, which  is  so  essential  to  the  due  admin- 
istration of  justice,  is  not  a  Utopian  dream. 
250 


AND  THE  PEOPLE 

Such  a  suggestion,  in  view  of  the  experience 
of  other  countries,  would  be  an  imputation  on 
the  practical  good  sense  of  the  American 
people,  and  indeed  upon  their  capacity  for 
self-government.  It  clearly  appears  that  this 
reform  is  dependent  at  every  stage  upon  the 
wide  discretion  of  an  enlightened  and  inde- 
pendent judiciary.  Whether  we  substitute 
elastic  court  rules  for  a  rigid  statutory  pro- 
cedure— or  appeal  to  the  courts  to  apply  their 
judicial  discretion  in  liberalizing  our  archaic 
rules  of  evidence  which  now  obscure  the 
ascertainment  of  the  facts  in  issue — or  if  we 
make  the  trial  judge  more  than  a  mere  umpire 
in  the  game  of  litigation,  or  if  we  seek  to 
reduce  the  overwhelming  mass  of  printed 
reports  to  those  only  useful  as  precedents,  or 
even  if  we  seek  to  reduce  the  intolerable  length 
of  judicial  opinions — or  if,  more  than  all,  we 
seek  to  remove  the  ancient  presumption  of 
prejudice  from  error,  and  to  make  our  appel- 
late hearings  more  than  mere  quests  for 
251 


THE  JUDICIARY 

error — in  each  and  every  one  of  these  methods 
of  reform  we  find  as  an  indispensable  factor 
the  enlarged  discretion  of  an  independent 
judiciary.  This  much  is  certain,  if  we  con- 
tinue in  the  mistaken  policy,  both  past  and 
present,  of  distrusting  and  limiting  the  judicial 
power  and  of  preventing  as  far  as  may  be  the 
exercise  of  judicial  discretion,  our  efforts  for 
effective  reform  in  judicial  procedure  will  be 
doomed  to  failure. 

We  have  thus  seen  that  an  independent 
judiciary  vested  with  large  judicial  discretion 
fitted  for  the  performance  of  judicial  duty 
is  as  essential  for  any  effective  reform  of 
our  defective  judicial  procedure  as  it  is  for 
the  enforcement  of  the  primary  law  of  the 
state  set  forth  in  our  constitutions,  both  fed- 
eral and  state.  Unless  our  judges  are  inde- 
pendent and  protected  against  popular  clamor 
and  the  demands  of  political  changes,  they 
can  not  perform  their  duty  to  the  people, 
in  the  administration  of  justice  for  the  people. 
252 


AND  THE  PEOPLE 

No  worse  calamity  could  befall  our  people 
than  the  adoption  of  a  scheme  which  would 
impair  this  independence  of  the  judiciary.  On 
the  other  hand,  as  we  have  shown,  this  prin- 
ciple of  judicial  independence  does  not  mean 
that  the  people  should  not  be  protected  against 
misconduct  on  the  one  hand  and  proven 
incapacity  on  the  other,  but  the  remedies 
therefor  should  not  impair  the  independence 
of  the  judiciary  whereon  rests  the  integrity  of 
our  constitutional  system. 

This  independence  of  the  judiciary,  how- 
ever, can  not  be  secured  without  a  supporting 
public  opinion.  The  highest  proof  of  the 
capacity  of  the  people  for  self-government  is 
their  submission  to  the  judgments  of  the 
courts.  This  supporting  public  opinion  can  not 
be  insured  without  the  co-operation  of  an 
intelligent,  learned  and  conscientious  bar.  As 
lawyers,  we  have  a  profound  duty  in  the  guid- 
ing and  directing  of  public  opinion  so  as  to 
secure  and  enlighten  an  independent  judiciary. 
253 


THE  JUDICIARY 

This  means  that  we  must  control  our  conten- 
tious spirit  in  the  trial  of  causes  and  make  the 
quest  for  error  subordinate  to  the  demands  of 
justice.  Lawyers  have  in  the  past  been  the 
leaders  in  the  movements  for  popular  reforms. 
Let  us  also  be  leaders  in  guiding  and  directing 
public  opinion  so  that  the  administration  of 
justice  may  be  adequate  for  human  wants  and 
the  integrity  of  our  constitutional  system  may 
be  preserved  unimpaired  for  all  time  to  come. 


254 


V 


Foot 
Page   Note  Citations 

227        1     Dillon,  J.,  p.  386  of  Published  Lectures. 
231        2    Yale  Law  Journal,  January,   1913,  on  the 

New  Equity  Rules  of  the  United  States, 

p.  141. 
234        3    New   Jersey   Practice   Act   of    1912,   Yale 

Law  Journal,  January,  1913,  by  Edward 

Q.  Keasley. 

237  4    Coke's  Reports,  Part  3,  Pref.  p.  3. 

238  5     Houston    v.    Williams,    13    Calif.   24;    De 

Votie  V.  McGerr,  14  Colo.  577;  Arkan- 
sas, Vaughan  v.  Hart,  49  Ark.  160. 

243        6    /;;  re  Nottage  L.  R.   (1895),  2d  Chancery, 
649. 

246        7     S.  E.  Baldwin.     Address  before  American 
Bar  Association,  1883. 
8     Twining  v.  New  Jersey,  211  U.  S.  78. 


ERRATUM 


255 


INDEX 


INDEX. 


Act  of  Settlement,  commission  of  judges  under,  17; 
in  England  in  1701,  201. 

Address,  removal  of  judges  by,  200-205. 

Adjudication  Act  of  1875,  201-202. 

Amendment,  power  of,  189-190. 

American  Bar  Association,  upholds  right  of  review, 
117;  against  recall,  181;  endorses  amendment  of 
statute  of  1789,  193;  arraigned  judicial  procedure, 
212;  on  procedure,  213-214;  petitioned  Congress  to 
rectify  presumption  of  prejudice  from  error,  218- 
219;  recommends  one  court  with  judicial  power 
of  the  state,  234;  Governor  Baldwin's  address 
before,  246. 

"American  Commonwealth,"  quoted  from,  65. 

American  Constitutional  Law,  doctrine  of,  109. 

American  court's  conception  of  law,  60. 

American  System  of  Judiciary,  historical  origin  of, 
89-90. 

Ancient  Societies,  administration  of  justice  in,  5-8. 

Appellate  court,  judicial  powers  vested  in  senate  as, 
38. 

Appellate  jurisdiction  by  House  of  Lords,  39-41. 

"Appellate  Procedure"  common  in  United  States, 
rare  in  England,  214-215. 

Aristotle  said  to  have  recognized  principle  of  separa- 
tion of  powers,  6. 

Arizona,  recall  of  judges  in  constitution  of,  179. 

Australia,  Constitution  of,  founded  by  act  of  Parlia- 
ment, 79,  80. 

Baldwin,  Governor,  on  contrast  between  Anglo- 
Saxon  and  Continental  Systems  of  law,  23 ;  quoted, 

259 


*  INDEX 

186;  recognized  artificiality  of  our  rules  of  evi- 
dence, 216,  217;  on  new  problem  of  protection 
against  organized  crime,  246,  248. 

Bills  of  Attainder,  frequent  in  England  under 
Tudors  and  Stuarts,  38. 

Bill  of  Rights  (English),  repudiated  dispensing 
power,  54. 

Bills  of  Rights,  need  for  in  U.  S.  constitution,  68-71 ; 
Federal,  113-114. 

Blackstone,  quoted,  61-62. 

Brewer,  Justice,  quoted,  134. 

British  North  American  Act  1867,  established  con- 
stitution of  Canada,  79. 

Brown,  Justice,  Judge  Harlan  on  retirement  of,  101. 

Bryce,  quoted,  63;  story  from  "American  Common- 
wealth," 65;  quoted,  78;  on  our  elective  judiciary, 
162;  on  the  faults  of  popular  election,  223. 

Bureaus  of  Legislative  research,  192-193. 

Burgess,  Professor,  quoted,  168. 

Burke,  on  restraints,  168. 

California,  recall  of  judges  in  constitution  of,  179, 
180;  attempt  to  remedy  evil  of  delay,  243-244. 

Canada,  Constitution  of,  79,  80. 

Causes,  delay  in  decision  of,  241-244. 

Charitable  Trusts,  case  of  prompt  decision  in  Eng- 
land, 243. 

Charters  of  Colonies,  89. 

Coke,  Lord,  natural  justice  theory  of,  displaced,  60; 
on  written  opinions,  237-238. 

Colorado,  recall  of  judges  in  constitution  of,  179. 

Commissions,  modern  administration,  41-42.  Inter- 
state commerce,  42-43. 

Connecticut,  Superior  Court  of,  appealed,  90;  voted 
in  favor  of  a  revising  judiciary,  91. 

260 


INDEX 

Constitution,  judicial  power  in,  66-67;  need  for  Bill 
of  Rights  in,  68-71. 

Constitutional  Convention  of  1789,  debate  on  a  re- 
vising judiciary,  91-93. 

Constitutional  Law,  in  England  and  United  States, 
63-64. 

Constitutional  Limitations,  by  Judge  Cooley,  quoted, 
58. 

Constitutional  restraints,  purpose  of,  167-168;  De 
Tocqueville  on,  169;  modern  impatience  of,  171- 
172. 

Constitution,  effect  of  excessive  legislation  in,  137- 
139. 

Constitutions,  federal  and  recent  state,  compared, 
133-137;  power  of  amending,  189-190;  state,  should 
be  less  restrictive,  191. 

Continental,  view  of  power  of  judiciary  as  to  execu- 
tive acts,  54;  system  of  power  of  judiciary  com- 
pared with  English  and  American,  86-87. 

Cooley,  Judge,  quoted,  58. 

Courts,  new  rules  of  equity  practice  in  United 
States,  227-231. 

Criminal  Procedure,  delay  in,  244-246. 

Curia,  source  of  English  Parliament  and  modern 
courts,  9,  10;  modern  survivor,  82. 

Decision  of  Causes,  delay  in,  241-244. 

Decisions  (See  recall  of  decisions). 

Delay  in  the  decision  of  cases,  241-244;  delay  in 
Criminal  Procedure,  244-246. 

Democratization,  progressive,  of  state  courts,  159- 
162. 

De  Tocqueville,  on  restraints  of  constitution,  169-170. 

Dicey,  39,  54,  63;  in  law  of  the  constitution,  11,  79; 
quoted,  83. 

261 


INDEX 

Dickens,  case  of  Jarndyce  v.  Jarndj'ce,  satire  on 
English  procedure,  220. 

Dillon,  Judge  John  F.,  comments  on  rule  of  equal 
law,  23 ;  quoted,  227,  229. 

Dodd,  Professor,  quoted,  194. 

Eddy,  Arthur  J.,  address  before  Chicago  Bar  Asso- 
ciation, 182. 

Elective  Judiciary,  Mr.  Bryce  on,  162;  danger  of 
system,  162-167. 

Elective  Term,  short,  instead  of  recall,  182-184. 

Electoral  Commission  case  in  1877,  197-198. 

English  and  American  conception  of  law,  60. 

English  Procedure,  modern  reform  of,  220-222. 

Equity  Practice,  rules  of,  213;  new  rules  of  in  United 
States  court,  227-231 ;  fusion  of  law  and  equity, 
231-235. 

Evidence,  artificial  rules  of,  215-217. 

Executive  Acts,  power  of  judiciary  as  to,  53;  on  the 
Continent,  54. 

Federal  Bill  of  Rights,  113-114. 

Federal  Constitution,  distinguished  from  state  con- 
stitutions, 108-112;  compared  with  recent  state 
constitutions,  133-137;  anomaly  of  unreviewable 
state  construction  of,  142-145. 

Federal  Courts,  effect  of  fourteenth  amendment  on, 
127-130. 

Federal  Systems,  illustrating  supremacy  of  judicial 
power,  78,  79. 

Federalist,  opinion  of  in  regard  to  power  of  judiciary 
to  declare  legislation  void,  67-68;  futility  of  Bill 
of  Rights,  70;  arguments  of,  84;  Hamilton  on 
impeachment,  202,  203. 

Federated  States  in  Central  and  South  America, 
example  of  federal  government,  79. 

262 


INDEX 

Field,  Justice,  concerning  requirement  of  written 
opinions,  238. 

"Flexible  Constitution,"  defined,  61-62,  contrasted 
with  rigid  constitutions,  64-65. 

Foreign  Countries,  our  procedure  contrasted  with, 
214-215. 

Fourteenth  Amendment,  118-119;  construction  of, 
120-122;  Justice  Miller  on,  122-124;  as  affecting 
police  power  of  states,  126;  effects  of  on  federal 
courts,  127-130;  anomaly  under  (Twilight  Zone), 
Carroll  on,  130. 

France,  principle  of  constitutional  government  con- 
trasted with  Anglo-Saxon,  46. 

Freedom  of  the  press,  case  of  Wilkes  and,  107. 

Fundamental  Rights,  not  originated  by  our  written 
constitutions,  59. 

Fusion  of  Law  and  Equity  practice,  231-235. 

Gibson,  Justice,  on  the  judicial  power,  74-76;  aban- 
doned his  own  contention,  76,  11 . 

German,  North,  Federation,  79,  80;  courts  of,  86. 

Germans,  ancient  administration  of  justice,  8. 

Gerry  in  convention  discussion,  91. 

Great  Britain,  efficiency  of  judicial  system,  214-215. 

Hadley,  President,  on  judicial  power,  168-169. 

Hamilton,  construction  of  judicial  power  in  United 
States  Constitution,  67,  68;  on  danger  of  Bill  of 
Rights  in  constitution,  70;  said  judiciary  was  the 
weakest  of  the  powers  of  government,  184;  quoted 
on  retirement  of  judges,  195-196;  defended  im- 
peachment, 202,  203. 

Hampden,  John,  case  of,  and  the  Ship  Money,  107. 

Harlan,  Justice,  on  judicial  power  in  the  United 
States,  101-103. 

Holland,  definition  of  law  enforced  by  courts  of 
England  and  United  States,  61. 

263 


INDEX 

Home  Rule  Bill,  jurisdiction  of  judicial  committee  of 
the  Privy  Council  under,  82. 

Hornblower,  Hon.  William  B.,  quoted,  181. 

House  of  Lords,  judicial  powers  of  state  senate 
fashioned  after,  38;  exercise  of  appellate  justice 
by,  39-41;  judges  summoned  to  attend,  103-104; 
trial  before,  199. 

Impeachment,  efficiency  of  remedy  by,  198-200. 

Income  Tax  amendment,  illustration  of  practical 
operation  of  judicial  power,  152-153. 

Incrimination,  self,  246-248. 

Independence  of  judiciary,  importance  of,  250-254. 

Interstate  Commerce  Commission,  42. 

Interstate  Commerce,  presents  questions  under 
power  of  Congress  to  regulate  commerce,  129. 

Jacksonian  Era,  spread  of  popular  election  of  judges, 
160. 

Johnson,  President  Andrew,  charged  with  refusing 
obedience  to  acts  of  Congress,  106;  prevented  from 
making  judicial  appointments,  187. 

Jefferson,  correspondence  with  Madison  concerning 
need  for  Bill  of  Rights  in  the  Constitution,  68-71 ; 
quoted,  74;  assailed  decisions  of  the  United  States 
Supreme  Court  in  reversing  the  supreme  courts  of 
the  states,  117. 

Judges,  recall  of,  179-181 ;  recall  now  existing 
through  short  elective  term  of,  182-184;  complaints 
of  personality  of,  194-198;  removal  of  by  address, 
200-205. 

Judiciary,  the,  its  relation  to  the  people  of  impor- 
tance among  the  Israelites,  9,  10;  in  English  his- 
tory, 10,  11;  power  as  to  executive  acts,  53-54; 
continental  view  of  that  power,  54;  a  revising 
judiciary,  the  subject  of  debate  in  the  Constitu- 
tional Convention  of  1789,  91-93;  independence  of, 

264 


INDEX 

considered  essential  by  American  colonists,  94;  in 
the  United  States,  99-101;  Act  of  1789,  114-116; 
Mr.  Bryce  on  elective,  162;  the  weakest  of  govern- 
mental powers,  184-187;  importance  of  independ- 
ence of,  250-254. 

Judicial  Committee  of  Privy  Coimcil,  81-83. 

Judicial  control  over  legislation,  57. 

Judicial  Power,  exercised  by  legislative  bodies,  37- 
39;  in  state  senate,  38;  conceded  independence  of, 
45;  in  United  States  Constitution,  66-67;  Hamil- 
ton's construction  of,  in  the  United  States  Con- 
stitution, 67-68;  Justice  Gibson  on,  74-76;  suprem- 
acy of,  in  a  federal  government,  76-78;  considered 
irrespective  of  the  federal  system,  84,  85;  concep- 
tion of,  93,  94;  Justice  Harlan  on,  101-103;  only 
exercised  in  the  decision  of  cases,  103-108;  Presi- 
dent Hadley  on,  168-169;  over  legislation,  150-152; 
practical  operation  of,  in  Income  Tax  amendment, 
152-153;  consequences  of  distrust  in,  222-227. 

Judicial  Procedure,  211-213. 

Judicial  systems  of  Great  Britian,  Canada  and 
Europe,  214. 

Lawson,  Professor,  on  efficiency  of  English  judicial 
system,  214-215;  on  written  opinion,  237. 

Letchmer,  Winthrop  v.,  case  of,  90. 

Legislation,  power  of  judiciary  to  declare  void,  67- 
68;  effect  of  excessive,  137-139;  deterioration  of, 
139;  annulling  of,  United  States  Court  and  state 
courts  contrasted,  147-149;  power  over,  strictly  a 
judicial  power,  150-152. 

Legislative  bodies,  exercise  of  judicial  powers  by, 
37;  divorces,  39;  product  should  be  improved,  191- 
194. 

Lord   Chancellor,   goes    in   and   out   with   his   party, 

265 


INDEX 

202;  can  change  rules  of  practice  with  approval 
of  majority  of  judges,  233. 

Lowell,  President,  quoted,  40,  153. 

Madison,  correspondence  with  Jefferson  concerning 
Bill  of  Rights  in  Constitution,  68-71 ;  supported 
proposition  of  a  revising  judiciary,  91. 

Madison,  Marbury  v.,  72-73,  75,  76,  84-85,  100. 

Magna  Charta,  due  process  of  law  guaranteed  by, 
248. 

Maine,  Sir  Henry,  reason  for  success  of  United 
States  Supreme  Court,  107 ;  quoted,  168. 

Marbury  v.  Madison,  72-73,  75,  76,  84-85,  100. 

Marshall,  Chief  Justice,  in  Marbury  v.  Madison, 
72-73,  75,  76,  84-85,  100,  111,  quoted,  150. 

Massachusetts,  Judges'  tenure  of  office  for  life,  161 ; 
constitution,  135. 

McCullough  v.  Maryland,  case  of,  quoted.  111. 

Michigan,  bill  providing  for  judicial  office  unless 
removal  for  cause  by  popular  vote,  183. 

Miller,  Justice,  quoted,  57,  59;  on  the  fourteenth 
amendment,  122-125,  127. 

Mississippi,  elective  and  appointive  system  for 
judges,  160;  editor,  case  of,  185. 

Missouri  Compromise  not  declared  unconstitutional 
until  some  thirty-seven  years  after  its  enactment, 
108. 

Missouri  Constitution,  135-136;  two  amendments  to, 
143-144;  submitted  to  popular  vote,  190;  provides 
for  removal  of  judges  by  address,  203. 

Montesquieu,  formulates  principle  of  separation  of 
the  powers  of  government,  6;  Spirit  of  Laws 
quoted  from,  15,  16;  timeliness  of  declaration  of, 
16;  sees  practical  illustration  of  principle  of,  17; 
fails  to  foresee  supremacy  of  Commons,  18;  Presi- 
dent Lowell  on,  21 ;  importance  of  declaration  of, 

266 


INDEX 

recognized  by  framcrs  of  Constitution,  24;  modern 
criticism  of  principle  of,  43-45;  importance  of 
maxim  of,  46-47. 

Natural  Law  in  the  courts  of  England  and  United 
States,  56-61. 

New  Hampshire,  judges  tenure  of  office  for  life,  161. 

New  Jersey,  case  of  self-incrimination  in,  248. 

New  York,  Court  of  Appeals,  case  of,  173;  state 
does  not  require  written  opinions,  240-241. 

North  German  Federation  in  1866,  79,  80. 

Opinion,  requirement  of  written,  236-244. 

Oregon,  recall  of  judges  in  constitution  of,  179-180. 

Parliament,  its  origin,  properly  termed  the  High 
Court  of  Parliament,  10,  11;  court  of  justice,  12; 
development  of,  considered  by  Supreme  Court  of 
United  States,  12;  issue  with  Stuarts  in  seventeenth 
century,  54;  sovereignty  of,  61-62;  official  drafts- 
men in,  192;  power  of  address  of,  201,  202,  204; 
changes  in  rules  of  practice  must  be  submitted  to, 
233. 

Pennsylvania,  judges  term  of  office  twenty-one  years, 
161. 

Police  power  of  states,  124;  changed  conditions 
affecting,  125-127;  more  liberal  construction  of,  by 
United  States  Supreme  Court,   145-146. 

Popular  Assembly,  one  of  the  two  forms  of  author- 
ity, 7;  powers  of,  8;  among  the  Germans,  8. 

Prejudice  from  error,  presumption  of,  217-219. 

Private  Law,  progressive  development  of,  170-171. 

Privy  Council,  judicial  committee  of,  80-83;  ultimate 
appeal  to  in  colonial  charters,  90;  principle  of, 
familiar  to  American  colonists,  93. 

Procedure,  judicial,  211-213;  American  Bar  Associa- 
tion on,  213-214;  contrasted  with  foreign  countries, 
214-215;  modern  reform  of  English,  220-222. 

267 


INDEX 

Public  Opinion,  controlling  power  of,  188-189. 

Recall  of  Decisions,  172-175;  inadequacy  of  recall  of 
state  decisions,  175-177;  fundamental  objection  to, 
177-179. 

Recall  of  judges,  179-181;  existing  through  short 
elective  term,  182-184. 

Reinsch,  Professor,  quoted  from,  139-140,  141. 

Remedies,  rightful  and  effective  for  judicial  unfitness, 
205-207. 

Research,  legislative  bureaus  of,   192-193. 

Restraints,  purpose  of  constitutional,  167-168;  De 
Tocqueville  on,  169;  modern  impatience  of  con- 
stitutional, 171-172. 

Revolution  of  1688,  repudiated  claim  of  power  of 
dispensation,  54,  65,  61. 

Rhode  Island,  judges'  tenure  of  office  for  life,   161. 

Rigid  constitutions  contrasted  with  flexible,  64-65. 

Roosevelt,  ex-president,  endorsed  modification  of  the 
principle  of  recall,  183. 

Scott,  Dred,  case,  118. 

Self-incrimination,  246-248. 

Separation  of  Powers,  principle  of,  formulated  by 
Montesquieu,  6;  term  explained  by  Professor 
Thayer,  19;  influence  of  doctrine  in  France  and  on 
Continent,  20;  President  Lowell  on,  21,  22;  prin- 
ciple of,  stated  in  Constitution  of  French  Revolu- 
tion, 22;  in  American  constitution,  24,  25,  26; 
Constitution  of  Kentucky,  first  instance  of,  28; 
principle  of,  political  rather  than  judicial  and  not 
guaranteed  by  federal  government,  30;  doctrine  of, 
influenced  American  colonists,  93-94. 

Ship  Money,  case  of  John  Hampden  and,  107. 

South  Africa,  Constitution  of,  founded  by  act  of 
Parliament,  79. 

Sovereignty  of  Parliament,  voiced  by  Blackstone,  61. 

268 


INDEX 

State  constitutions,  distinguished  from  federal  con- 
stitutions, 108-112;  recent,  compared  with  federal, 
133-137;  should  be  less  restrictive,  191. 

State  construction,  anomaly  of  unrevisable,  and  of 
federal  constitution,   142-145. 

State  Courts,  progressive  democratization  of,  159-162. 

State  decisions,  right  of  review  of,  116-118. 

State  Rights  opposition  to  federal  judicial  power,  Ti- 
74. 

Stimson,  in  his  American  Constitutions,  quoted,  136. 

Supreme  Court  decision  called  for  on  construction  of 
clauses  of  treaty  with  France,  104-105;  more  lib- 
eral construction  of  police  power,  145-146;  on  pro- 
gressive character  of  constitutional  law,  146-147; 
contrasted  with  state  courts  as  to  annulling  legisla- 
tion, 147-149;  suggested  amendment  to  have,  grant 
writ  of  error,  193-194;  rules  of  equity  practice 
of,  213;  decision  as  to  self-incrimination,  247. 

Swiss  Federation,  constitution  of,  79. 

System  of  law,  developed,  248-250. 

Tacitus,  quoted  on  power  of  popular  assembly  among 
the  Germans,  8. 

Taft,  President,  opinion  on  recall  of  decisions,  177- 
179;  declares  failure  of  American  administration 
of  justice,  212. 

Technicality,  sign  of  undeveloped  system  of  law, 
248-250. 

Thayer,  Professor,  the  late,  quoted  from,  19,  85,  86, 
150. 

Third  Degree  in  criminal  investigation,  247. 

Topeka  v.  Loan   Association,  quoted,  57. 

Twilight  Zone,  130-133. 

United  States  Bank,  case  of,  108. 

United  States  Supreme  Court,  more  liberal  con- 
struction   of    Police    Power,    145-146;    contrasted 

269 


INDEX 

with  state  courts  as  to  annulling  legislation,  147- 
149. 

Unconstitutional,  as  understood  under  different  sys- 
tems of  laws,  87-89. 

Vermont,  judges'  term  of  office  two  years,   161. 

Washington,  asked  Supreme  Court  decision  on 
treaty,  104-105. 

Wigmore,  on  evidence,  216. 

Wilkes  and  the  Freedom  of  the  Press,  case  of,  107. 

Wilson,  felt  futility  of  Bill  of  Rights  in  Constitution, 
70;  in  discussion  of  a  revising  judiciary,  92. 

Winthrop  v.  Letchmer,  case  of,  90. 

Wisconsin,  bureau  of  legislative  research,  193. 

Workmen's  Compensation  Law,  173. 

Written  Opinions,  requirement  of,  236-244. 

Wurtz,  Professor,  on  rules  of  equity  practice,  231. 


370 


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